Posts tagged "1008614"

Commonwealth v. DeJesus (Lawyers Weekly No. 10-086-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11392   COMMONWEALTH  vs.  ELAN DeJESUS.       Suffolk.     January 7, 2014.  ‑  May 19, 2014. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.       Controlled Substances.  Practice, Criminal, Plea, Assistance of counsel.  Constitutional Law, Plea, Assistance of counsel.  Due Process of Law, Plea, Assistance of counsel.  Alien.       Indictment found and returned in the Superior Court Department on February 3, 2009.   A motion for a new trial, filed on February 27, 2012, was heard by Charles J. Hely, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Zachary Hillman, Assistant District Attorney, for the Commonwealth. Eduardo Antonio Masferrer (Oriosto Medrano Santana with him) for the defendant. Emma Winger & Wendy Wayne, Committee for Public Counsel Services, for Committee for Public Counsel Services Immigration Impact Unit, amicus curiae, submitted a brief.       DUFFLY, J.  We are asked in this case to consider whether defense counsel’s advice to his noncitizen client that if the client pleaded guilty to drug possession charges he would be “eligible for deportation” was constitutionally deficient.  Because, under applicable immigration law, the conviction of a noncitizen of possession with intent to distribute cocaine makes deportation or removal from the United States automatic or “presumptively mandatory,” see Padilla v. Kentucky, 559 U.S. 356, 368-369 (2010) (Padilla), citing 8 U.S.C. § 1227(a)(2)(B)(i) (2006), we conclude that counsel’s advice was constitutionally deficient and that the defendant suffered prejudice as a result.  Accordingly, we affirm the decision of the Superior Court judge allowing the defendant to withdraw his guilty plea. Background.  The defendant pleaded guilty to possession with intent to distribute a class B substance (cocaine), G. L. c. 94C, § 32A (a), and received a sentence of probation.  After a subsequent arrest for driving without a license, the defendant was taken into custody by immigration authorities; he then filed a motion for a new trial in the Superior Court seeking to withdraw his guilty plea.  A Superior Court judge, who also had been the plea judge, conducted an evidentiary hearing on the defendant’s motion, at which the defendant and his plea counsel both testified.  The judge thereafter made detailed findings and issued a comprehensive memorandum of decision and order allowing the motion.  He determined that, under applicable immigration law, it is clear […]

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Posted by Massachusetts Legal Resources - May 19, 2014 at 9:50 pm

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