Commonwealth v. Sylvain (Lawyers Weekly No. 10-036-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-11896 COMMONWEALTH vs. KEMPESS SYLVAIN. Suffolk. November 5, 2015. – March 14, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Alien. Practice, Criminal, Plea, Judicial discretion, Affidavit. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on April 17, 2007. Following review by this court, 466 Mass. 422 (2013), further proceedings on a motion to vacate, filed on January 12, 2012, were had before James W. Coffey, J. The Supreme Judicial Court granted an application for direct appellate review. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Laura Mannion Banwarth (Wendy S. Wayne, Committee for Public Counsel Services, with her) for the defendant. DUFFLY, J. Relying on advice from his attorney that a plea agreement would not result in his deportation, the defendant, who is not a citizen of the United States, pleaded guilty to one count of possession of cocaine.[1] The attorney’s advice was incorrect, and Federal authorities eventually placed the defendant in a removal proceeding. The defendant moved to vacate his guilty plea pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), claiming ineffective assistance of counsel. That motion was denied, and we granted the defendant’s motion for direct appellate review. We concluded in Commonwealth v. Sylvain, 466 Mass. 422, 423-425 (2013) (Sylvain I), that the defendant received ineffective assistance from his plea counsel when counsel provided erroneous advice that the defendant would not be subject to deportation if he received a suspended sentence of less than one year in connection with a guilty plea to possession of cocaine. In our decision in Sylvain I, we noted that “[a]lthough the defendant’s affidavit [in support of the motion to vacate was] highly suggestive that he would have elected to go to trial but for his attorney’s erroneous advice,” we could not make such a determination in the absence of additional findings and credibility determinations. Id. at 439. We therefore remanded the matter to the Boston Municipal Court “with instructions to provide findings relating to the issue of prejudice and, if necessary, to hold an additional evidentiary hearing.” Id. On remand, the matter went before the judge who had accepted the defendant’s guilty plea, and who earlier had denied his motion to vacate that plea. […]
Commonwealth v. Sylvain (Lawyers Weekly No. 10-170-13)
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‑11400 COMMONWEALTH vs. KEMPESS SYLVAIN. Suffolk. May 6, 2013. ‑ September 13, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Controlled Substances. Alien. Constitutional Law, Plea, Assistance of counsel, Retroactivity of judicial holding. Due Process of Law, Plea, Assistance of counsel. Practice, Criminal, Plea, Assistance of counsel, Retroactivity of judicial holding. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on April 17, 2007. A motion to vacate, filed on January 12, 2012, was heard by James W. Coffey, J., and a motion to reconsider was considered by him. The Supreme Judicial Court granted an application for direct appellate review. Wendy S. Wayne, Committee for Public Counsel Services, (Laura Mannion Banwarth with her) for the defendant. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. The following submitted briefs for amici curiae: Christopher N. Lasch, of Colorado, for Massachusetts Legal Academics. Sejal Zota, of North Carolina, & Paromita Shah, Todd C. Pomerleau, & Sarah Unger for National Immigration Project of the National Lawyers Guild & others. David M. Siegel for David M. Siegel & another. CORDY, J. In 2007, the defendant, Kempess Sylvain, a noncitizen lawfully residing in the United States, pleaded guilty to possession of a controlled substance, subjecting him to automatic deportation from the United States. After the defendant’s conviction was final, we decided Commonwealth v. Clarke, 460 Mass. 30, 34, 37, 45 (2011) (Clarke), which held that the rule announced in Padilla v. Kentucky, 130 S. Ct. 1473, 1483, 1486 (2010) (Padilla), regarding a criminal defendant’s right under the Sixth Amendment to the United States Constitution to accurate advice as to the deportation consequences of a guilty plea, was not a “new” rule under Teague v. Lane, 489 U.S. 288, 301, 310 (1989) (Teague), and therefore applied retroactively to cases on collateral review. Thereafter, the defendant filed a motion for a new trial seeking to vacate his guilty plea on the ground that his attorney was constitutionally deficient in erroneously advising him that there would be no deportation consequences stemming from his guilty plea. The defendant’s motion was denied, and he timely appealed. While the defendant’s appeal was pending, the United States Supreme Court decided Chaidez v. United States, 133 S. Ct. 1103, 1105, […]