Commonwealth v. Lys (Lawyers Weekly No. 11-082-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   16-P-0039                                       Appeals Court   COMMONWEALTH  vs.  CHRIST O. LYS.     No. 16-P-39.   Middlesex.     December 8, 2016. – June 28, 2017.   Present:  Green, Agnes, & Desmond, JJ.     Controlled Substances.  Practice, Criminal, New trial, Plea, Affidavit, Assistance of counsel.  Constitutional Law, Plea, Assistance of counsel.  Due Process of Law, Plea, Assistance of counsel.  Alien.     Complaint received and sworn to in the Marlborough Division of the District Court Department on January 13, 2012.   A motion for a new trial was heard by Robert G. Harbour, J.     Patrick Long for the defendant. KerryAnne Kilcoyne, Assistant District Attorney, for the Commonwealth.     AGNES, J.  The defendant, Christ Lys, appeals from a decision by a judge of the District Court, following a non-evidentiary hearing, to deny his motion for a new trial.[1]  The defendant maintains that his attorney was ineffective because he did not inform the defendant that he would be deported as a consequence of pleading guilty.  The judge reasoned that although adequate advice from plea counsel was lacking, thus satisfying the first prong of the familiar two-part test for ineffective assistance of counsel, see Commonwealth v. Saferian, 366 Mass. 89 (1974) (Saferian), the defendant was not entitled to relief because he failed to establish that he was prejudiced by the shortcomings of his attorney.  Although we affirm, we take this opportunity to clarify what framework a judge should apply when faced with a defendant’s affidavit that is not accompanied by an affidavit of his trial counsel. Background.  On January 13, 2012, the defendant was charged in a twenty-eight count complaint with three counts of distribution of a class D substance (marijuana) in violation of G. L. c. 94C, § 32C(a); four counts of distribution of a drug within one thousand feet of a school, in violation of G. L. c. 94C, § 32J; two counts of possession of a class B substance (cocaine), in violation of G. L. c. 94C, § 34; two counts of distribution of a class B substance (cocaine), in violation of G. L. c. 94C, § 32A (c); two counts of conspiracy to violate controlled substances laws, in violation of G. L. c. 274, § 7; and fifteen counts of attempting to distribute cocaine and marijuana, in violation of G. L. c. 274, § 6.  On October 30, 2012, the defendant pleaded guilty to three counts of marijuana distribution, two counts of cocaine distribution, two […]

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