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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]
Commonwealth v. Almonte (Lawyers Weekly No. 10-091-13)
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‑11027 COMMONWEALTH vs. CHRISTIAN ALMONTE. Essex. January 11, 2013. ‑ May 20, 2013. Present: Spina, Cordy, Botsford, Gants, & Duffly, JJ. Homicide. Motor Vehicle, Theft. Practice, Criminal, Motion to suppress, Warrant, Affidavit, Opening statement, Witness, Argument by prosecutor, Impeachment by prior conviction, Required finding, Capital case. Evidence, Argument by prosecutor, Expert opinion, Unresponsive answer, Prior conviction, Death certificate. Constitutional Law, Search and seizure. Search and Seizure, Warrant, Affidavit. Witness, Expert, Impeachment. Deoxyribonucleic Acid. Indictments found and returned in the Superior Court Department on June 20, 2008. A pretrial motion to suppress evidence was heard by David A. Lowy, J., and the cases were tried before him. James E. Methe for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. A Superior Court jury convicted the defendant of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, and of larceny of a motor vehicle. In this direct appeal from his convictions, the defendant argues: (1) the partial denial of the defendant’s motion to suppress evidence seized during a search of his apartment was error; (2) the prosecutor included improper remarks in his opening statement and closing argument; (3) the trial judge erred in refusing to strike a nonresponsive and prejudicial answer by a Commonwealth witness concerning the meaning of “inconclusive” deoxyribonucleic acid (DNA) test results; (4) the judge’s refusal to allow the defendant’s counsel to cross-examine a witness about specific acts of prior misconduct was error; (5) evidence that the death was a “homicide” should not have been introduced, as stated either on the death certificate or in the medical examiner’s testimony; and (6) the denial of the defendant’s motion for a required finding of not guilty constituted error depriving the defendant of his right to due process. The defendant further argues that relief is warranted pursuant to G. L. c. 278, § 33E. For the reasons discussed below, we affirm the defendant’s convictions and, with respect to the conviction of murder in the first degree, decline to exercise our power to grant relief under G. L. c. 278, § 33E. Background. On February 24, 2008, William Escobar was stabbed to death in his apartment in Methuen. The police, as part of their investigation, obtained and executed a search […]