Commonwealth v. Almonte (Lawyers Weekly No. 11-006-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑901 Appeals Court COMMONWEALTH vs. LUCAS H. ALMONTE. No. 12‑P‑901. Essex. February 11, 2013. ‑ January 27, 2014. Present: Trainor, Katzmann, & Sikora, JJ. Alien. Practice, Criminal, Plea, Assistance of counsel, Affidavit, Findings by judge. Constitutional Law, Plea, Assistance of counsel. Complaint received and sworn to in the Lawrence Division of the District Court Department on April 11, 2005. A motion to withdraw pleas of guilty and vacate convictions, filed on January 20, 2012, was considered by Matthew J. Nestor, J. Philip A. Mallard, Assistant District Attorney, for the Commonwealth. Murat Erkan (Matthew Bingham with him) for the defendant. SIKORA, J. In 2005, a District Court judge accepted pleas of guilt by the defendant to two counts of assault and battery. In 2012, the judge allowed the defendant’s motion to vacate the convictions. The defendant contended that the pleas had resulted from the ineffective assistance of counsel because his attorney had failed to advise him of the exposure to deportation created by the pleas as required by Padilla v. Kentucky, 559 U.S. 356 (2010) (Padilla). The Commonwealth appealed upon the ground that the judge’s failure to conduct an evidentiary hearing and to provide supporting findings of fact and reasoning constituted an abuse of discretion and error of law. We agree. We now vacate the order and remand the case for further action. Background. 1. Defendant’s guilty pleas. The Commonwealth charged the defendant with assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b) (count one); and assault and battery on a child causing injury, G. L. c. 265, § 13J(b) (count two). The charges arose from allegations that the defendant had physically abused his nine year old daughter. The parties engaged in plea discussions and made recommendations to the judge for disposition. The “Tender of Plea” form, otherwise known as the “green sheet,” shows that the defendant accepted the following disposition: (1) on count one, a finding of guilty and a sentence of one year of confinement, suspended for two years, upon certain probationary terms; and (2) on count two, a finding of guilty and a sentence of one year of confinement concurrent with the first sentence, also suspended for two years, but with no additional probationary terms. The green sheet includes the following information concerning the potential deportation consequences […]