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12-P-1454 Appeals Court

COMMONWEALTH vs. BILLY BALTHAZAR.

No. 12-P-1454.

Berkshire. December 4, 2013. - October 3, 2014.

Present: Cypher, Kantrowitz, & Cohen, JJ.

Alien. Constitutional Law, Assistance of counsel, Plea. 

Practice, Criminal, Assistance of counsel, Plea, New trial.

Complaints received and sworn to in the Northern Berkshire 

Division of the District Court Department on April 11, 2008. 

A motion for a new trial was heard by Michael J. Ripps, J. 

Daniel J. Ciccariello for the defendant.

John P. Bossé, Assistant District Attorney, for the 

Commonwealth.

CYPHER, J. The defendant, Billy Balthazar, appeals from 

the denial of his motion for a new trial in which he sought to 

vacate guilty pleas that he entered in 2009, claiming that 

counsel's failure to correctly advise him of the immigration 

consequences of those pleas deprived him of his right to the 

effective assistance of counsel under the Sixth Amendment to the 
2

United States Constitution and art. 12 of the Massachusetts 

Declaration of Rights.

1 Although we agree that counsel's advice 

did not satisfy the standards articulated in Padilla v.

Kentucky, 559 U.S. 356, 368-369 (2010) (Padilla), and 

Commonwealth v. DeJesus, 468 Mass. 174, 178-182 (2014)

(DeJesus), we conclude that further proceedings are necessary to 

determine whether counsel's deficient performance prejudiced the 

defendant. See id. at 182-183. We therefore vacate the order 

denying the defendant's motion for a new trial and remand for 

further proceedings.2

 

1 After the defendant's appeal was entered in this court, 

the United States Supreme Court issued its decision in Chaidez

v. United States, 133 S. Ct. 1103, 1105 (2013), which held that 

the rule announced in Padilla v. Kentucky, 559 U.S. 356, 374 

(2010), does not have retroactive effect. As that holding 

conflicted with our Supreme Judicial Court's prior decision in 

Commonwealth v. Clarke, 460 Mass. 30, 45 (2011), and resolution 

of that conflict would affect the outcome of the defendant's 

claim, we stayed this appeal pending the Supreme Judicial 

Court's decision in Commonwealth v. Sylvain, 466 Mass. 422, 423

(2013), as to whether it would continue to give Padilla

retroactive effect in light of Chaidez. We vacated the stay 

after the Supreme Judicial Court issued its opinion in Sylvain, 

concluding that it would continue to give Padilla retroactive 

effect. See Commonwealth v. Sylvain, supra at 423-424 ("We 

conclude, as a matter of Massachusetts law and consistent with 

our authority as provided in Danforth v. Minnesota, 552 U.S. 

264, 282 [2008] . . . , that the Sixth Amendment right 

enunciated in Padilla was not a 'new' rule and, consequently, 

defendants whose State law convictions were final after April 1, 

1997, may attack their convictions collaterally on Padilla

grounds. We thus affirm our decision in Clarke"). Both parties 

have filed a supplemental memorandum, addressing the effect of 

Sylvain on the issues presented in the defendant's appeal.

2 The motion judge wrote a careful and well-reasoned 

decision. DeJesus, supra, was not available at the time.
3

Background. Following the defendant's arraignment on

multiple charges in April through June, 2008, he appeared in the 

District Court on July 13, 2009, represented by counsel, for

final pretrial conferences. After the Commonwealth amended 

three charges from felonies to misdemeanors, and following a 

plea colloquy, the defendant pleaded guilty to all the charges, 

including the two charges at issue here.

In a notice dated July 15, 2010, from the "U.S. Department 

of Justice Immigration and Naturalization Service" (INS),

3 the 

defendant was informed that he was "subject to being taken into 

custody and deported or removed from the United States pursuant 

to . . . [8 U.S.C. § 1227](a)(2)(A)(ii)," based on his 2009 

convictions of malicious destruction of property under $250, 

G. L. c. 266, § 127, and larceny under $250, G. L. c. 266, § 30. 

On February 27, 2012, the defendant filed a motion for a new 

trial that sought to vacate his guilty pleas to these charges, 

alleging that counsel failed to correctly advise him of the 

immigration consequences of his pleas. Following a 

nonevidentiary hearing on March 20, 2012, a District Court judge 

denied the defendant's motion and issued a written decision on 

May 30, 2012.

 

3 Although the notice appears to be from the INS, that 

entity was abolished in 2003 and its duties transferred to the 

Department of Homeland Security. See Commonwealth v. Grannum, 

457 Mass. 128, 130 n.5 (2010), and authorities cited.
4

Discussion. 1. Standard of review. The defendant argues 

that the judge abused his discretion in denying the motion for a 

new trial, asserting that counsel's ineffectiveness violated his 

rights under Padilla, supra at 369, and Commonwealth v. Clarke, 

460 Mass. 30, 47-48 (2011) (Clarke). We review the denial of a 

motion for a new trial for significant error of law or abuse of 

discretion. Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722 

(2012). Our review of a claim of ineffective assistance of 

counsel follows the well-known test in Commonwealth v. Saferian, 

366 Mass. 89, 96 (1974).4 As applied to the claim before us, the 

defendant must show that counsel failed to adequately advise the 

defendant of the immigration consequences of his pleas and, as a 

result, the defendant was prejudiced. See Clarke, supra at 45-

46.

2. Adequacy of counsel's advice. In Padilla, 559 U.S. at 

374, the United States Supreme Court held that "counsel must 

inform [a] client whether [a] plea carries a risk of 

deportation."5 See Commonwealth v. Sylvain, 466 Mass. 422, 436-

437 (2013) (indicating right to counsel's advice on deportation 

consequences of guilty plea are coextensive under Sixth 

 

4 "[I]f the Saferian test is met, the Federal test is 

necessarily met as well." Clarke, supra at 45, quoting from 

Commonwealth v. Fuller, 394 Mass. 251, 256 n.3 (1985).

5 Our Supreme Judicial Court has held that Padilla also 

requires that counsel inform noncitizen clients that a 

conviction at trial may have immigration consequences. 

Commonwealth v. Marinho, 464 Mass. 115, 124 (2013).
5

Amendment and art. 12). The Supreme Court stated in Padilla

that "[w]hen the law is not succinct and straightforward . . . a 

criminal defense attorney need do no more than advise a 

noncitizen client that pending criminal charges may carry a risk 

of adverse immigration consequences. But when the deportation 

consequence is truly clear, . . . the duty to give correct 

advice is equally clear" (footnote omitted). Padilla, supra at 

369. As to Padilla's case, the Supreme Court noted that it was 

"not a hard case in which to find deficiency: The consequences 

of Padilla's plea could easily be determined from reading the 

removal statute, his deportation was presumptively mandatory, 

and his counsel's advice [that Padilla's conviction would not 

result in removal] was incorrect." Id. at 368-369. 

In DeJesus, our Supreme Judicial Court went further. The 

court concluded that advising a client that he was "eligible for 

deportation" was not sufficient to convey the reality that 

deportation would be "presumptively mandatory" or "practically 

inevitable," where the immigration statute was "succinct, clear, 

and explicit about the removal consequences for a noncitizen 

defendant convicted of possession with intent to distribute 

cocaine." DeJesus, 468 Mass. at 180-181. As a result, the 

advice "fell below an objective standard of reasonableness,"

satisfying the first prong of the test for ineffective 

assistance under both the Federal and State tests. Id. at 182.
6

Here, the question is whether it was sufficiently clear

that the misdemeanor crimes of malicious destruction of property 

under $250, in violation of G. L. c. 266, § 127, and larceny 

under $250, in violation of G. L. c. 266, § 30, were crimes 

involving moral turpitude that would bring the defendant within 

the parameters of 8 U.S.C. § 1227(a)(2)(A)(ii) (2006),

6 governing 

deportation and, if so, whether counsel's recommendation that 

the defendant seek the advice of an immigration lawyer fell 

below an objective standard of reasonableness.

The motion judge, who also was the plea judge, began his 

determination of whether plea counsel's conduct had been

deficient by considering affidavits submitted by plea counsel

and the defendant. The judge did not conduct an evidentiary 

hearing. The judge credited plea counsel's affidavit,

7 which 

 

6 As previously indicated, the defendant's notice from the 

INS states that the defendant is subject to removal pursuant to 

8 U.S.C. § 1227(a)(2)(A)(ii). That statutory provision, in 

pertinent part, states: "Any alien . . . in and admitted to the 

United States shall, upon the order of the Attorney General, be 

removed if the alien . . . at any time after admission is 

convicted of two or more crimes involving moral turpitude, not 

arising out of a single scheme of criminal misconduct, 

regardless of whether confined therefor and regardless of 

whether the convictions were in a single trial."

7 The defendant filed a motion below to strike counsel's 

affidavit, principally on the ground that it contained the 

"unauthorized disclosure of confidential communications." The 

judge denied the motion, ruling that because the defendant had 

asserted counsel was ineffective, counsel was permitted by 

Mass.R.Prof.C. 1.6(b)(2), 426 Mass. 1322 (1998), to reveal 

confidences reasonably necessary to establish a defense in that 
7

stated that counsel advised the defendant at their first meeting 

and other times that there may be immigration consequences and 

urged the defendant, as well as members of his family, to obtain 

the services of an immigration lawyer. Plea counsel also 

averred that the defendant refused to seek advice from an 

immigration lawyer and insisted on going forward with the pleas 

if their dispositions did not involve incarceration.

8

Having unsuccessfully urged the defendant to seek advice 

from an immigration lawyer, counsel informed the judge prior to 

the plea colloquy that he had sought through plea bargaining to 

avoid adverse immigration consequences, and presented the 

following rationale to the judge:

"[T]he Commonwealth has agreed to reduce certain felonies 

to misdemeanors so that they won't affect [the defendant's]

opportunity to be able to stay in this country as a 

permanent resident. . . . I don't think the misdemeanors 

create any problem for him, we'll just have to wait and 

see, but he certainly has a better shot than a continuance 

without a finding on a felony where he has to acknowledge 

that there's sufficient facts for the court to find him 

guilty."9

 

controversy. Contrary to the defendant's claim on appeal, the 

judge properly denied the motion.

8 Counsel averred that the defendant "informed [him] that 

[the defendant] had prior criminal matters in the United States 

and that he was knowledgeable with respect to the potential 

immigration problems and consequences."

9 A transcript of this hearing has not been included in the 

record, but neither party challenges the quotation and, although 

the defendant's brief contains the same quotation with some 

textual differences, those differences are inconsequential.
8

Although 8 U.S.C. § 1227(a)(2) enumerates categories of 

criminal offenses and, in some instances, identifies crimes for 

which aliens may be deported, it does not identify specific 

crimes involving moral turpitude. The defendant's memorandum in 

support of his motion for a new trial cited authorities that 

indicate larceny and malicious destruction of property are 

crimes involving moral turpitude and, based on the existence of 

these authorities, argued that plea counsel should have known 

that pleading guilty to those crimes would subject the defendant

to deportation.

10 As legal research would have indicated that 

the crimes were ones involving moral turpitude, we must 

conclude, notwithstanding the motion judge's thoughtful 

consideration of Justice Alito’s observations in his concurrence 

in Padilla, 559 U.S. at 375-388, that counsel's failure to 

inform the defendant that pleading guilty to the charges would 

 

10 See, e.g., Tillinghast v. Edmead, 31 F.2d 81, 83 (1st 

Cir. 1929) (concluding larceny is crime involving moral 

turpitude), and Matter of C, 2 I. & N. Dec. 716, 719 (B.I.A. 

1947) (suggesting malicious destruction of property is crime 

involving moral turpitude). But see Da Silva Neto v. Holder, 

680 F.3d 25, 30 (1st Cir. 2012) (noting court has "no case law 

directly on point to guide" its review of whether malicious 

destruction of property under Massachusetts law is crime 

involving moral turpitude). We also note that secondary 

sources, such as Kesselbrenner & Wayne, Defending Immigrants 

Partnership, Selected Immigration Consequences of Certain 

Massachusetts Offenses 11, 12 (2006), were available to plea 

counsel in Massachusetts and would have provided additional 

guidance.
9

subject him to presumptively mandatory deportation fell below an 

objective standard of reasonableness.

11

3. Prejudice to defendant. Although the motion judge

concluded that plea counsel's advice was not deficient, he

nevertheless considered the second prong of the Saferian test, 

whether the defendant was prejudiced by counsel's 

representation. To demonstrate prejudice, the defendant must 

"prove that it would have been a rational decision on his part 

to reject the government's plea bargain and proceed to trial." 

Commonwealth v. Chleikh, 82 Mass. App. Ct. at 725. 

"Specifically, . . . a defendant has the 'substantial burden' of 

proving (1) that he had a substantial defense available to him;

(2) that there was a reasonable probability that he could have 

negotiated a different plea bargain; or (3) that the presence of

special circumstances support the conclusion that he would have 

placed additional emphasis on immigration consequences in 

 

11 The motion judge observed: "Justice Alito, in his 

concurrence in Padilla, in which the Chief Justice joined, 

suggests that because of the vagaries of immigration law, courts 

will have difficulty in determining whether an attorney has or 

has not given effective advice of counsel about immigration 

consequences. Justice Alito notes that, 'providing advice on 

whether a conviction for a particular offense will make an alien 

removable is often quite complex' because '[m]ost crimes 

affecting immigration status are not specifically mentioned 

. . . , but instead fall under a broad category of crimes, such 

as crimes involving moral turpitude or aggravated felonies.'

Padilla, supra at [377-378], quoting M. Garcia & L. Eig, CRS 

Report for Congress, Immigration Consequences of Criminal 

Activity (Sept. 20, 2006) (summary) [emphasis in original]."
10

deciding whether to plead guilty." Id. at 725-726, citing 

Clarke, 460 Mass. at 47-48.

As to the first factor, the defendant averred that "[h]ad 

[he] known that . . . larceny and [malicious] destruction of 

property . . . [were] crimes upon which deportation could be 

based, [he] would not have pled guilty, instead [he] would have 

gone to trial as [he] thought that [he] had meritorious

defenses." In fact, the motion judge noted, and the 

Commonwealth appeared to agree, that the defendant had a viable 

defense to the malicious destruction of property charge. On the 

larceny charge, the defendant was found in possession of a trash 

barrel removed from the premises where his former wife was 

residing. The defendant claimed that he had borrowed it to 

collect leaves, and he may have been able to defend the larceny 

charge on that ground. 

As to the second factor used to prove prejudice, i.e., 

whether there was a reasonable probability that the defendant 

could have negotiated different pleas, it is evident that 

counsel made great efforts to obtain a plea arrangement that

would enable the defendant to avoid deportation, and the 

Commonwealth apparently was willing to structure the pleas to 

meet that objective. Had counsel been aware that two of the 

charges were crimes involving moral turpitude, he may have been 
11

able to negotiate an arrangement whereby these two especially 

problematic charges were avoided. 

As to the final factor, whether there were special 

circumstances that indicated the defendant would have placed

emphasis on the immigration consequences when deciding whether 

to plead guilty, the defendant's affidavit states that he was a 

permanent resident of the United States, that he had come to the 

United States from Haiti in 1996, that he is a licensed aircraft 

mechanic and had worked numerous other jobs in the United 

States, and that all of his family lived in the United States

and Canada.

In light of the above showing on the three factors used to 

prove prejudice, we conclude that the defendant has raised a 

substantial issue necessitating an evidentiary hearing. See 

Commonwealth v. Almonte, 84 Mass. App. Ct. 735, 738 (2014) 

(noting that where substantial issue arises from submitted 

affidavits, better practice is to conduct evidentiary hearing). 

Further inquiry is required to determine whether, had the

defendant been properly advised of the consequences of pleading

guilty to the two crimes involving moral turpitude, he would 

have opted to "roll the dice" and proceed to trial, despite the 

risk of incarceration, to avoid near certain deportation.

Conclusion. Under the evolving case law in this area, the 

defendant has demonstrated that counsel's advice was 
12

constitutionally deficient and raised a substantial issue as to 

prejudice. Accordingly, he is entitled to an evidentiary 

hearing. We vacate the order denying the defendant's motion for 

a new trial and remand the case to the District Court for 

further proceedings consistent with this opinion.

So ordered.