Commonwealth v. Lavrinenko (Lawyers Weekly No. 10-172-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11792   COMMONWEALTH  vs.  PAVEL LAVRINENKO.       Hampden.     April 7, 2015. – October 5, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Alien.  Constitutional Law, Plea, Assistance of counsel.  Due Process of Law, Plea, Assistance of counsel.  Practice, Criminal, Plea, Assistance of counsel.       Complaint received and sworn to in the Springfield Division of the District Court Department on April 11, 2005.   A motion to withdraw a plea of guilty, filed on December 3, 2013, was heard by John M. Payne, Jr., J.; a motion for reconsideration was also heard by him, and a second motion for reconsideration was considered by him.   The Supreme Judicial Court granted an application for direct appellate review.   Merritt Schnipper for the defendant. Cynthia Cullen Payne, Assistant District Attorney (Jane Davidson Montori, Assistant District Attorney, with her) for the Commonwealth. Wendy S. Wayne & Jennifer Klein, Committee for Public Counsel Services, & Laura Murray-Tjan, for Committee for Public Counsel Services, amicus curiae, submitted a brief.     GANTS, C.J.  The issue on appeal is whether a noncitizen defendant, admitted into the United States as a refugee, is entitled to withdraw his guilty plea to a complaint charging assault by means of a dangerous weapon, where his attorney did not make a reasonable inquiry regarding the defendant’s citizenship, and therefore did not learn that he was a refugee.  We conclude that, under art. 12 of the Massachusetts Declaration of Rights, constitutionally effective representation of a criminal defendant requires defense counsel to make a reasonable inquiry of the defendant to determine whether he or she is a citizen of the United States and, if the defendant is not, to make a reasonable inquiry into the defendant’s immigration status, including whether the defendant was admitted into this country as a refugee or has been granted asylum. We also conclude that, in determining whether a defendant suffered prejudice from counsel’s deficient performance, “special circumstances” regarding immigration consequences, as contemplated in Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011), should be given substantial weight in determining, based on the totality of the circumstances, whether there is a reasonable probability that the defendant would have rejected the plea offer and insisted on going to trial had counsel provided competent advice regarding the immigration consequences of the guilty plea.  […]

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