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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 
2

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," 

 

1 The defendant was charged with one count of possession of 

cocaine with the intent to distribute, G. L. c. 94C, § 32A (a), 

and one count of a drug violation in a school zone. G. L. 

c. 94C, § 32J. He filed a motion to suppress, which was not 

heard because the parties reached a plea agreement before the 

scheduled hearing. As part of the agreement, the defendant 

pleaded guilty to possession of cocaine and the Commonwealth 

agreed to recommend the dismissal of the distribution and school 

zone charges. The judge sentenced the defendant to eleven 

months in a house of correction, suspended for two years, in 

accordance with the parties' agreement. The defendant 

successfully completed his term of probation. 
3

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. The judge found, based 

primarily on the affidavits of the defendant and his plea 

counsel, that "the defendant placed particular emphasis on the 

immigration consequences." The judge stated that the affidavits 

were supported by the fact that the defendant had agreed to a 

disposition of eleven months' incarceration, suspended for two 

years, indicating to the judge that deportation was a "live 

issue" for the defendant at the time of the plea. The 

Commonwealth appealed, and we allowed the defendant's second 

application for direct appellate review.

The Commonwealth now contends that the judge erred in 

allowing the defendant's motion to vacate his guilty plea 

because the defendant failed to establish that he suffered 

prejudice as a result of his counsel's ineffective 

representation. The Commonwealth asserts also that the judge 

abused his discretion by relying primarily on the affidavits in 
4

allowing the defendant's motion. Because the affidavits, which 

properly were considered by the judge, provide a sufficient 

basis on which to conclude that there was "a reasonable 

probability that, but for counsel's errors, [the defendant] 

would not have pleaded guilty and would have insisted on going 

to trial" (citation omitted), see Commonwealth v. Clarke, 460 

Mass. 30, 47 (2011) (Clarke), we affirm the allowance of the 

motion to vacate. 

Background. In the wake of our decision in Sylvain I, the 

defendant filed a motion seeking an emergency evidentiary 

hearing. At an emergency hearing on November 13, 2013, defense 

counsel called one witness, the mother of the defendant's son, 

and submitted affidavits from members of his family and a 

supplemental affidavit from plea counsel. The defendant also 

relied on his own previously submitted affidavit and that of his 

plea counsel. The Commonwealth objected to the submission in 

evidence of affidavits made by family members who were 

testifying, and argued that the only probative witness the judge 

needed to hear from was the defendant. Neither the defendant 

nor plea counsel was present at the hearing. Defense counsel 

informed the judge that the defendant was in the custody of 

Immigration and Customs Enforcement (ICE) officials in Plymouth, 

and waived his presence. The Commonwealth called no witnesses 

and submitted no affidavits in opposition to the motion for a 
5

new trial.2 See Mass. R. Crim. P. 30 (c) (3), as appearing in 

435 Mass. 1501 (2001) ("parties opposing a motion may file and 

serve affidavits where appropriate in support of their 

respective positions"). 

As set forth in the judge's findings of fact, which are not 

disputed by the Commonwealth, the defendant, a lawful permanent 

resident of the United States, is a citizen of Haiti who came to 

the United States with his family in 1996, when he was seventeen 

years old. He is a high school graduate of the Boston public 

school system and has held various jobs in Massachusetts over 

the last several years. His mother, three sisters, his son, and 

the mother of his son are all United States citizens. In an 

affidavit submitted in support for his motion for a new trial, 

the defendant averred, "I would not have agreed to plead guilty 

to something that would surely result in my deportation from the 

country I have lived in for the past [fifteen] years. . . . 

This is my home; all of my immediate family lives here, along 

with my [six] year old son and my girlfriend of [eleven] and a 

half years. . . . I understand that by pleading guilty I got a 

'deal,' . . . however, it's not a 'deal' if it results in me 

being deported from my home and my family." 

 

2 Responding to defense counsel's waiver of the defendant's 

presence in court, the prosecutor stated that if the judge 

intended to rely on the defendant's affidavit, "the Commonwealth 

would need an opportunity to be able to cross-examine him." 
6

The judge allowed the defendant's motion for a new trial 

and issued a written decision explaining his reasoning. The 

Commonwealth filed a motion to reconsider, contending that the 

judge improperly relied on the affidavits of plea counsel and 

the defendant as evidence. The judge offered to conduct a 

further evidentiary hearing at which the Commonwealth would be 

permitted to cross-examine witnesses, including plea counsel.3 

The Commonwealth rejected this suggestion on the asserted basis 

that it was not the Commonwealth's burden to call witnesses. 

The judge then denied the Commonwealth's motion to reconsider, 

and the Commonwealth appealed from that order and the order 

allowing the defendant's motion for a new trial.

Discussion. 1. Standard of review. "A motion to withdraw 

a guilty plea is treated as a motion for a new trial pursuant to 

Mass. R. Crim. P. 30 (b) . . . ." Commonwealth v. DeJesus, 468 

Mass. 174, 178 (2014), citing Commonwealth v. Furr, 454 Mass. 

101, 106 (2009). We review "the motion judge's conclusion only 

to determine whether there has been a significant error of law 

or other abuse of discretion." Commonwealth v. Lavrinenko, 473 

Mass. 42, 47 (2015), quoting Commonwealth v. Grace, 397 Mass. 

303, 307 (1986). To the extent that a motion judge was in a 

 

3 We think that the judge took the appropriate course of 

action by providing the Commonwealth with the opportunity to 

challenge the factual assertions contained in the affidavits. 

The Commonwealth, however, chose not to do so, and thus waived 

any argument on this ground.
7

better position to evaluate the credibility of the affiants, we 

will defer to the judge's assessment of the "credibility, 

weight, and impact of the affidavits" submitted in support of a 

motion to withdraw a guilty plea. See Commonwealth v. Pingaro, 

44 Mass. App. Ct. 41, 48 (1997). We grant "substantial 

deference" to a decision on a motion brought pursuant to Mass. 

R. Civ. P. 30 (b) "when the judge passing on the motion is the 

same judge who heard the plea." Commonwealth v. Grant, 426 

Mass. 667, 672 (1998), S.C., 440 Mass. 1001 (2003). Contrast 

Commonwealth v. Grace, supra ("When, as here, the motion judge 

did not preside at trial, we defer to that judge's assessment of 

the credibility of witnesses at the hearing on the new trial 

motion, but we regard ourselves in as good a position as the 

motion judge to assess the trial record").

2. Claim of abuse of discretion. As we concluded when 

this case was before us in 2013, counsel was ineffective in 

giving erroneous advice to the noncitizen defendant regarding 

the immigration consequences of his guilty plea. See Sylvain I, 

supra at 438. Therefore, the sole question before us is whether 

the judge abused his discretion in concluding that the defendant 

suffered prejudice as a result of counsel's erroneous advice. 

The judge's conclusions of law reflect that he correctly 

understood that, in order to satisfy the prejudice requirement 

in these circumstances, "the defendant has the burden of 
8

establishing that 'there is a reasonable probability that, but 

for counsel's errors, he would not have pleaded guilty and would 

have insisted on going to trial.'" See Clarke, 460 Mass. at 47, 

quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). A defendant 

may make this showing by demonstrating that "(1) he had an 

available, substantial ground of defense . . . that would have 

been pursued if he had been correctly advised of the dire 

immigration consequences attendant to accepting the plea 

bargain; (2) there is a reasonable probability that a different 

plea bargain (absent such consequences) could have been 

negotiated at the time; or (3) the presence of 'special 

circumstances' that support the conclusion that he placed, or 

would have placed, particular emphasis on immigration 

consequences in deciding whether to plead guilty" (footnote 

omitted). Clarke, supra at 47-48, quoting Hill, supra.

The judge found that the defendant did not have an 

available ground of defense and could not have negotiated a 

better plea agreement. But he found that the defendant had met 

his burden by establishing the presence of "special 

circumstances."4 The judge gave "significant weight" to plea 

 

4 The Commonwealth's argument that, even if the defendant 

establishes the presence of special circumstances, the decision 

to allow the motion for a new trial was nevertheless an abuse of 

discretion because the defendant did not also establish that he 

had a viable defense is unavailing; it disregards the standard 

set forth in Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011) 
9

counsel's affidavits, in which the counsel stated (as summarized 

by the judge) that "during the time of the plea, the defendant's 

major concern was to avoid deportation."

5 The judge found this 

statement was "supported by the defendant's own affidavit." In 

that affidavit, the defendant averred that all of his family 

lived in the United States, including his mother, father, three 

sisters, the mother of his son, and his son, and that he would 

not have agreed to accept the plea "deal" if he knew it would 

have resulted in "being deported from my home and my family." 

He said further, "I would have taken my chances at trial, 

knowing full well that if I was found guilty at trial I would be 

sentenced to committed time and then deported afterward; at 

least I would have had a chance at staying in the country." 

Relying on these affidavits, the judge found "that the defendant 

 

(Clarke), that the presence of special circumstances alone may 

be sufficient to meet the defendant's burden. The judge 

properly considered the presence of special circumstances in 

this case, to which he could give "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." See 

Commonwealth v. Lavrinenko, 473 Mass. 42, 43 (2015). 

5 During the 2013 hearing on the defendant's emergency 

motion for a new trial, the judge stated that he credited plea 

counsel's affidavits because counsel was a "veteran lawyer" who 

appeared before the court "all the time."
10

placed particular emphasis on the immigration consequence during 

the plea."6 

Clearly, a judge is not required to credit statements in a 

defendant's affidavit that he placed special emphasis on 

immigration consequences because of his circumstances; a judge 

could find those statements to be "merely self-serving." 

Sylvain I, supra at 439. In this case, however, the judge 

looked to the two affidavits in order to evaluate the 

credibility of the defendant's assertions that he placed a 

particular emphasis on avoiding immigration consequences. As 

the judge explained, according to the affidavits of plea counsel 

and the defendant, "the defendant was advised that if the 

sentence was less than one year, that he would not be deported. 

This is supported not only by the affidavits but by the sentence 

itself, eleven months suspended for two years. The sentence 

provides insight to the court that it was a 'live' issue at the 

time and the defendant thought it would be safe to plead 

guilty." Thus, the judge was able to conclude, without having 

 

6 "[A] determination whether it would be rational for a 

defendant to reject a plea offer 'must take into account the 

particular circumstances informing the defendant's desire to 

remain in the United States.'" Commonwealth v. DeJesus, 468 

Mass. 174, 184 (2014), quoting People v. Picca, 97 A.D.3d 170, 

183-184 (N.Y. 2012). Although the judge's decision reflects 

that he gave "minimal weight" to affidavits from the defendant's 

family attesting to the defendant's reasons for seeking to avoid 

deportation to Haiti, he nonetheless appears to have taken those 

circumstances into account. 
11

to test the defendant's statements through cross-examination and 

personal observation of his demeanor, that the statements were 

supported by the context in which the defendant had pleaded 

guilty and by his counsel's affidavit. 

Based on the above, the judge determined that, here, the 

defendant had established "the presence of 'special 

circumstances'" showing that he "placed . . . particular 

emphasis on immigration consequences in deciding whether to 

plead guilty." Commonwealth v. DeJesus, 468 Mass. at 183, 

quoting Clarke, 460 Mass. at 47-48, and that the defendant's 

expressed concern about being deported was not a mere pretext 

for seeking a new trial.7

In many circumstances, a defendant, as a result of 

counsel's ineffectiveness in failing to warn about the 

immigration consequences of a guilty plea, is deprived of the 

opportunity to evaluate the risks of going to trial against the 

possible immigration consequences that may arise from a guilty 

 

7 We note that the defendant established that he indeed had 

considered the immigration consequences of a guilty plea before 

pleading guilty, and therefore that he had "placed" emphasis on 

his immigration consequences before making the decision to 

accept the plea. See Clarke, 460 Mass. at 47-48. This inquiry 

is somewhat different from the circumstance in which a defendant 

is unaware that he faces immigration consequences because his 

counsel failed properly to advise him of them. In those types 

of cases, the presence of special circumstances must be shown in 

order to support a conclusion that a defendant "would have 

placed" emphasis on such consequences, had he been advised of 

them. Id. at 47.
12

plea. In those cases, a judge may face a more difficult task in 

determining whether a defendant "would have placed . . . 

particular emphasis on the immigration consequences in deciding 

whether to plead guilty." See Clarke, 460 Mass. at 47-48, 

quoting Hill, supra at 60. Here, however, the judge found that 

the immigration consequence of a guilty plea was a "live" issue 

at the plea hearing, but the defendant was ill-advised by 

counsel. The judge did not abuse his discretion in allowing the 

defendant's motion for a new trial.

3. Reliance on affidavits. As discussed supra, we 

conclude that the judge's decision properly relied on the 

affidavits submitted in support of the defendant's motion for a 

new trial. We reject the Commonwealth's argument that the judge 

erred in allowing a new trial based solely on those affidavits. 

The rule of criminal procedure governing motions for 

postconviction relief, Mass R. Crim. P. 30 (c) (3), states 

explicitly that a "judge may rule on the issue or issues 

presented by such a motion on the basis of facts alleged in the 

affidavits without further hearing if no substantial issue is 

raised by the motion or affidavits." See Commonwealth v. Muniur 

M., 467 Mass. 1010, 1011 (2014) (whether to conduct evidentiary 

hearing requires consideration of "the seriousness of the issue 

raised and the adequacy of the showing on that issue"). See 

also Commonwealth v. Stewart, 383 Mass. at 257 ("the decision 
13

whether to decide the motion on the basis of affidavits or to 

hear oral testimony . . . is left largely to the sound 

discretion of the judge"); Commonwealth v. Coggins, 324 Mass. 

552, 557, cert. denied, 338 U.S. 881 (1949) ("In accordance with 

the practice in this Commonwealth motions for new trial in both 

civil and criminal cases ordinarily are heard on the facts as 

presented by affidavit").

At the evidentiary hearing in this case, the defendant 

called one witness and submitted several affidavits. As noted, 

the Commonwealth chose not to call any witnesses and submitted 

no affidavits in support of its position opposing the allowance 

of a new trial. See Mass. R. Crim. P. 30 (c) (3) ("parties 

opposing a motion may file and serve affidavits where 

appropriate in support of their respective positions"). 

Following the hearing, the judge weighed all of the evidence 

before him, and based his decision on the affidavits of the 

defendant and his plea counsel, as well as on the context in 

which the defendant had pleaded guilty. It was not error for 

the judge to rely on the affidavits in granting the defendant's 

motion for a new trial, where, as here, those affidavits provide 

a sufficient factual basis to support the ruling. See 

Commonwealth v. Stewart, 383 Mass. at 259; Commonwealth v. 

Gordon, 82 Mass. App. Ct. 389, 395 (2012) (evidentiary hearing 

may not be necessary "if the substantial issue raised is solely 
14

a question of law, or if the facts are undisputed in the 

record"). 

Order vacating guilty plea

and granting new trial

 affirmed.