Commonwealth v. Nguyen (Lawyers Weekly No. 11-054-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 15-P-472 Appeals Court COMMONWEALTH vs. SON NGUYEN. No. 15-P-472. May 17, 2016. Practice, Criminal, Plea, Assistance of counsel. Constitutional Law, Plea, Assistance of counsel. Due Process of Law, Plea, Assistance of counsel. Alien. Shoplifting. In 2013, the defendant admitted to facts sufficient to prove three counts of shoplifting. A judge of the Dorchester Division of the Boston Municipal Court Department continued the cases without findings and imposed conditions of probation. After the defendant was found in violation of probation based on a new shoplifting offense, guilty findings were entered on the three underlying charges, and he was sentenced to ten days’ incarceration. The defendant subsequently filed a motion for a new trial seeking to withdraw his guilty pleas. Before us now is the defendant’s appeal of the order denying that motion without an evidentiary hearing, and of the order denying his motion for reconsideration. We affirm. In the defendant’s motion for a new trial, he argued that his plea counsel was constitutionally ineffective for failing to provide the defendant with adequate advice regarding the immigration consequences of his pleas. See Padilla v. Kentucky, 559 U.S. 356, 368-369 (2010). Because the record establishes that plea counsel did discuss with the defendant that his pleas could have negative immigration consequences,[1] the defendant is left to argue that counsel was ineffective for failing to advise him that he presumptively would be deported as a result of the pleas. See Commonwealth v. DeJesus, 468 Mass. 174, 180-182 (2014). As the defendant accurately notes, “[a]ny alien who . . . is convicted of two or more crimes involving moral turpitude . . . is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii) (2008). There is some question, however, whether the defendant is correct in his assertion that the crime of shoplifting is a crime involving moral turpitude. See Mejia v. Holder, 756 F.3d 64, 68-69 (1st Cir. 2014). Compare Commonwealth v. Balthazar, 86 Mass. App. Ct. 438, 442-443 (2014), with Commonwealth v. Cano, 87 Mass. App. Ct. 238, 245 n.14 (2015). However, even were we to assume arguendo that shoplifting constitutes such a crime, the defendant is still unable to show that he presumptively would be deported as a result of his pleas.[2] To the contrary, because it is undisputed that the defendant came to the United States from Vietnam prior to 1995, he enjoys a […]