NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-990

COMMONWEALTH

vs.

OSCAR AQUINO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In October 2018, the defendant, Oscar Aquino, pleaded 

guilty in the District Court to assault and battery on a 

household or family member and to threatening to commit a crime. 

The following year, he submitted a motion to withdraw his guilty 

plea on the basis that plea counsel had not advised him of the 

immigration consequences of his guilty plea. See Padilla v. 

Kentucky, 559 U.S. 356 (2010). The same judge who had accepted 

his plea denied that motion, and the defendant now appeals. We 

affirm.

Background. During the plea colloquy, the prosecutor 

recited the following facts, all of which the defendant admitted 

to be true. On February 26, 2018, the defendant and the victim 

got into an argument over the defendant's use of the victim's 

car. The defendant became violent, and according to the victim, 
2

slapped her multiple times in the face, pushed her to the floor, 

and threatened to kill her. The victim reported the incident to 

the police, to whom she also disclosed that the defendant had "a

habit of physically abusing her whenever he gets mad" for the 

past year and a half. The officers took a photograph of the 

victim's face, which showed an abrasion running down the right 

side of her face.

The defendant was arrested the next day and charged with 

assault and battery on a household or family member and 

threatening to commit a crime. In March 2018, the defendant was 

charged with a violation of a G. L. c. 209A order after he 

contacted the victim. He was held without bail for 143 days 

after a judge determined he was a danger to the community under 

G. L. c. 276, § 58A.

As noted, the defendant pleaded guilty to the assault and 

battery and to threatening to commit a crime.1 During the plea 

colloquy, the judge asked him if he had been forced or pressured 

to plead guilty, to which he responded that he had not. The 

judge also advised the defendant that it was "practically 

inevitable" that he would suffer immigration consequences if 

1 In consideration for the guilty plea, the 209A violation 

charge was dismissed by the Commonwealth.
3

either of the offenses to which he was pleading guilty mandated 

deportation.2 The defendant responded that he understood.

In his 2019 motion to withdraw his plea, the defendant 

argued that plea counsel did not advise him that crimes of 

domestic violence are deportable offenses. See 8 U.S.C. 

§ 1227(a)(2)(E)(i); 18 U.S.C. § 16. He averred that if he had 

known the immigration consequences, he would have gone to trial 

instead. Despite having admitted to all of the facts included 

in the Commonwealth's proffer at the plea hearing, the defendant 

submitted an entirely different version in an affidavit 

submitted in support of his motion. In response to the 

defendant's motion, the Commonwealth submitted additional 

materials to the District Court, including evidence that the 

victim played for the officers voicemails from the defendant in 

which he threatened to have her killed.3

On April 29, 2019, the judge held an evidentiary hearing on 

the defendant's motion. There, the defendant denied ever having 

struck the victim and claimed that she had instigated the 

argument. He also offered various reasons why he thought she 

might lie about this. According to him, he admitted that he had 

2 The judge's noncitizen warning comported with the 

requirements of G. L. c. 278, § 29D, and Mass. R. Crim. P. 12 

(c) (3) (A) (iii), as appearing in 486 Mass. 1501 (2020).

3 The victim later refused to give the recordings to the 

police.
4

struck and threatened the victim only because plea counsel had 

pressured him to do so and then advised him to lie about this to 

the judge.4

The defendant testified that plea counsel did not fully 

inform him of the immigration consequences of pleading guilty, 

and that, had he been informed, he never would have pleaded 

guilty. He recounted his substantial connections to the United 

States: he had full-time employment with a substantial annual 

income, owned a multifamily home that provided rental income, 

and had family members who had also lawfully immigrated and 

lived in the same city.

Plea counsel also testified. In recounting his plea 

discussions with the defendant, he stated that the defendant's 

primary concern was getting out of the house of correction.

Plea counsel stated that he did not "recall [immigration 

consequences] being a big issue that day for [the defendant]," 

and that the defendant had told him he had consulted an 

immigration attorney. He stated that although he was prepared 

to go to trial, the "problematic" photograph of the abrasion on 

4 The defendant testified that when plea counsel discussed 

the plea deal with him at the house of correction where he was 

held, the attorney had another inmate translate for him. On 

January 26, 2021, plea counsel testified that he relied on an 

inmate to translate only one sentence and used a court 

interpreter for the rest of the plea discussion with the 

defendant.
5

the victim's face that police took on the day of the incident 

concerned him.

The judge credited plea counsel's testimony and discredited 

the defendant's. She nevertheless found that plea counsel's 

performance had been ineffective because -– as the Commonwealth 

conceded -- "[a]dvising a client to consult with an immigration 

attorney when deportation is presumptively mandatory is 

insufficient."5 The judge further ruled, however, that the 

defendant had not been prejudiced by plea counsel's deficient 

advice. She specifically found that the Commonwealth's case was 

strong and that the defendant lacked a substantial defense. She 

further found that the defendant had not demonstrated the 

possibility of negotiating a better plea deal, or the existence 

of special circumstances sufficient to induce him to go to 

trial.

Discussion. To prevail on a Padilla claim, a defendant 

must show that plea counsel's performance was both defective and

prejudicial. Padilla, 559 U.S. at 366, 369, 374, citing 

Strickland v. Washington, 466 U.S. 668, 687 (1984). To 

establish prejudice, a defendant must show that, but for 

counsel's defective advice, the defendant would have not pleaded 

guilty and that such a decision would have been "rational under 

5 The Commonwealth also conceded the ineffective performance

of counsel at the hearing.
6

the circumstances." Commonwealth v. Clarke, 460 Mass. 30, 47 

(2011), quoting Padilla, 559 U.S. at 1485. A defendant may do 

this by showing that:

"(1) he had 'an available, substantial ground of defence'

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."

Clarke, supra at 47-48, quoting Commonwealth v. Saferian, 366 

Mass. 89, 96 (1974), and Hill v. Lockhart, 474 U.S. 52, 60

(1985). We address each of the three ways of showing prejudice 

in order.

1. Substantial defense. In finding the case against the 

defendant "strong," the judge noted that the victim was 

available and willing to testify at trial, and that the police 

had a photograph to corroborate her testimony by showing a

contemporaneous injury to her face (a photograph that defense 

counsel himself characterized as "problematic").6 There was also 

6 The defendant does not include the photograph to which 

plea counsel had referred in his record appendix. In an 

assented-to post-oral argument motion, the defendant has asked 

us to accept the photograph as a late-filed exhibit that the 

judge referenced in her decision. However, the photograph was 

never offered as an exhibit, either during the plea colloquy or 

at the evidentiary hearing on the defendant's motion to withdraw 

his plea. In addition, it is not at all clear on the record 
7

evidence before the judge that the police had listened to 

voicemails that recorded the defendant threatening to have the 

victim killed.7

The defendant appears to assume that he would have had a 

substantial defense simply because he claims he would have 

testified at trial and told a different account of the incident. 

However, this ignores the fact that the judge (who also had 

accepted the defendant's plea) found the defendant not to be a 

credible witness.8 We discern no clear error in the judge's 

before us that the judge ever herself viewed the photograph, 

though it is possible that the photograph was included as part 

of the police reports the Commonwealth submitted as attachments 

in its opposition to the defendant's motion to withdraw his plea 

(those police reports are not included in either the defendant's 

record appendix or the Commonwealth's supplemental appendix). 

If the photograph itself was not before the judge, it cannot

properly be part of the appellate record. In the end, we need 

not resolve this question because we conclude that the actual 

photograph provides no appreciable assistance to the defendant's 

arguments on appeal. We allow the defendant's motion to the 

extent necessary to allow us to reach that conclusion and 

otherwise deny it as moot.

7 This evidence came from police reports which were 

submitted by the Commonwealth to the District Court. The judge 

had the benefit of seeing the police reports, which the 

Commonwealth had submitted with its opposition to the motion to 

withdraw the plea, but the defendant has not included them in 

his record appendix.

8 The parties have not briefed the extent to which the 

Commonwealth could have impeached the defendant at any retrial 

with the factual admissions he made at the plea hearing. We do 

not rely on that, while noting the open issue.
8

finding that the defendant lacked a substantial defense at 

trial.

2. Alternative plea agreement. In his affidavit 

accompanying his motion, the defendant made a bare assertion 

that he might have been able to negotiate a better plea 

agreement. However, he never supported that assertion with 

evidence, such as the plea negotiation policies or practices of 

the District Attorney. The defendant does not press the issue 

on appeal and in fact acknowledges that "it is likely he would 

not have been able to negotiate a better plea deal . . . ." In 

any event, as the Commonwealth notes, pleading guilty to any 

charges involving domestic violence would have resulted in the 

same immigration consequences. There was no clear error in the 

judge's finding that the defendant would not have been able to 

negotiate a better plea agreement.

3. Special circumstances. The defendant further argues 

that the judge erred when she found that the defendant did not 

have special circumstances at the time of the plea agreement 

that would have caused him to opt for a trial. As the defendant 

accurately points out, he had strong reasons for wanting to 

remain in the United States at the time he pleaded guilty: a

well-paying job, a home that generated rental income, and family 

members living nearby. In addition, as a legal permanent 
9

resident, the defendant had a viable path to United States

citizenship.

Nevertheless, the mere presence of special circumstances is

not enough to establish prejudice. A defendant must also show, 

as a matter of fact, that those special circumstances would have 

caused him to go to trial. See Commonwealth v. Lavrinenko, 473 

Mass. 42, 59 (2015) (the existence of special circumstances does 

"not require the conclusion that there is a reasonable 

probability that the special circumstances would have caused the 

defendant to choose to go to trial"). The judge's decision 

reveals that she both understood the applicable law and 

acknowledged all of the facts that the defendant marshaled in 

his favor.9 In the end, however, she found -- as a matter of 

fact -- that despite the defendant's interest in remaining in 

the United States, he still would have pleaded guilty. Although 

the defendant testified that he would not have pleaded guilty 

had he understood the immigration consequences, it was up to the 

judge whether to credit that testimony. See Commonwealth v. 

Scott, 467 Mass. 336, 344 (2014) (citation omitted) (hearing 

judge is "final arbiter on matters of credibility"). The 

9 The defendant highlights the judge's reference to the 

absence of any evidence that he would suffer harm if he returned 

to his native Dominican Republic. This was an appropriate 

factor for the judge to consider. See Lavrinenko, 473 Mass. at 

58. Nothing suggests that the judge believed that the defendant 

could not show special circumstances absent such proof.
10

judge's finding also enjoys support in plea counsel's testimony 

that he "[did not] recall [immigration consequences] being a big 

issue" for the defendant on the day the defendant entered the 

plea agreement, and that the defendant's "primary objective at 

the time" was to get out of the house of correction. The 

judge's finding that the defendant would not have opted for 

trial had plea counsel adequately informed him of the 

immigration consequences was not clearly erroneous.

Order denying motion to 

withdraw guilty plea 

affirmed.

By the Court (Milkey, 

Massing & Neyman, JJ.10),

Assistant Clerk

Entered: May 13, 2024.

10 The panelists are listed in order of seniority.