Posts tagged "1112814"

Commonwealth v. Balthazar (Lawyers Weekly No. 11-128-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   12-P-1454                                       Appeals Court   COMMONWEALTH  vs.  BILLY BALTHAZAR. No. 12-P-1454. Berkshire.     December 4, 2013. – October 3, 2014.   Present:  Cypher, Kantrowitz, & Cohen, JJ. Alien.  Constitutional Law, Assistance of counsel, Plea.  Practice, Criminal, Assistance of counsel, Plea, New trial.     Complaints received and sworn to in the Northern Berkshire Division of the District Court Department on April 11, 2008.   A motion for a new trial was heard by Michael J. Ripps, J.     Daniel J. Ciccariello for the defendant. John P. Bossé, Assistant District Attorney, for the Commonwealth.   CYPHER, J.  The defendant, Billy Balthazar, appeals from the denial of his motion for a new trial in which he sought to vacate guilty pleas that he entered in 2009, claiming that counsel’s failure to correctly advise him of the immigration consequences of those pleas deprived him of his right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.[1]  Although we agree that counsel’s advice did not satisfy the standards articulated in Padilla v. Kentucky, 559 U.S. 356, 368-369 (2010) (Padilla), and Commonwealth v. DeJesus, 468 Mass. 174, 178-182 (2014) (DeJesus), we conclude that further proceedings are necessary to determine whether counsel’s deficient performance prejudiced the defendant.  See id. at 182-183.  We therefore vacate the order denying the defendant’s motion for a new trial and remand for further proceedings.[2] Background.  Following the defendant’s arraignment on multiple charges in April through June, 2008, he appeared in the District Court on July 13, 2009, represented by counsel, for final pretrial conferences.  After the Commonwealth amended three charges from felonies to misdemeanors, and following a plea colloquy, the defendant pleaded guilty to all the charges, including the two charges at issue here. In a notice dated July 15, 2010, from the “U.S. Department of Justice Immigration and Naturalization Service” (INS),[3] the defendant was informed that he was “subject to being taken into custody and deported or removed from the United States pursuant to . . . [8 U.S.C. § 1227](a)(2)(A)(ii),” based on his 2009 convictions of malicious destruction of property under $ 250, G. L. c. 266, § 127, and larceny under $ 250, G. L. c. 266, § 30.  On February 27, 2012, the defendant filed a motion for a new trial that sought to vacate his guilty pleas to these charges, alleging that […]

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Posted by Massachusetts Legal Resources - October 3, 2014 at 6:12 pm

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