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Commonwealth v. Martinez (Lawyers Weekly No. 11-136-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   11-P-2063                                       Appeals Court   COMMONWEALTH  vs.  JOSE MARTINEZ. No. 11-P-2063. Suffolk.     April 10, 2014. – October 29, 2014.   Present:  Grainger, Rubin, & Hanlon, JJ. Alien.  Constitutional Law, Assistance of counsel, Plea.  Practice, Criminal, Assistance of counsel, Plea, Affidavit.       Indictments found and returned in the Superior Court Department on June 1, 1998.   A motion for a new trial, filed on September 6, 2011, was considered by Elizabeth B. Donovan, J., and a motion for reconsideration was considered by her.     David Shaughnessy for the defendant. Sarah H. Montgomery, Assistant District Attorney, for the Commonwealth.      HANLON, J.  The defendant, Jose Martinez, citing Padilla v. Kentucky, 559 U.S. 356 (2010) (Padilla), appeals from the denial, without a hearing, of his motion for a new trial on the grounds of ineffective assistance of counsel, and from the denial of his motion for reconsideration.  The significant issue is the appropriate weight to be given to a defendant’s failure to produce an affidavit from plea counsel, when the defendant makes a substantial showing that he attempted to obtain such an affidavit and counsel refused to respond.  In the circumstances of this case, the defendant was entitled to an evidentiary hearing, with an opportunity to secure plea counsel’s presence by subpoena and for the judge to determine any credibility issues based on live testimony.  Accordingly, we vacate the orders denying the defendant’s motions for new trial and for reconsideration and remand the matter for an evidentiary hearing. Background.  On May 3, 1999, the defendant pleaded guilty in the Superior Court to distribution of a class B controlled substance, in violation of G. L. c. 94C, § 32A(a) (count one),[1] and conspiracy to violate the Controlled Substances Act, in violation of G. L. c. 94C, § 40 (count two).[2]  The judge gave the “immigration warning” required by G. L. c. 278, § 29D, and then asked the defendant where he was born.  The defendant answered that he was born in Guatemala, and the judge responded, “I have no way of knowing what the consequences will be in terms of deportation and all.  That’s up to the Federal Naturalization Service and not anything I can control.  You understand you’re running the risk, though?”  The defendant responded, “Yes.” The judge then accepted the plea, finding that the defendant was “alert and intelligent and that his plea [was] made voluntarily with full knowledge […]

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Posted by Massachusetts Legal Resources - October 29, 2014 at 4:44 pm

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