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-535

COMMONWEALTH

vs.

FERNANDO A. AGUIAR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order of a District Court

judge denying, after an evidentiary hearing, his motion to 

withdraw a guilty plea. The defendant's motion was based on 

ineffective assistance of counsel, specifically counsel's 

failure to properly advise the defendant, a lawful permanent 

resident of the United States, of the immigration consequences 

of his plea pursuant to Padilla v. Kentucky, 559 U.S. 356 

(2010). Determining that the judge erred in, among other 

things, disregarding the affidavit of the defendant's plea 

counsel and misapprehending the basis of the defendant's removal

from the United States, we reverse.

Background. In November 2019, the forty-five year old 

defendant was arraigned in the District Court on a three-count 
2

complaint and detained based on dangerousness.1 He remained in 

custody at the time of the scheduled trial date in January 2020. 

At that time, the defendant submitted to the judge an agreedupon tender of plea proposing that the defendant would plead 

guilty on all charges and be sentenced to eighteen months 

imprisonment, with sixty days to serve (deemed served), and the 

balance suspended for two years with probationary conditions. 

During the plea colloquy, the prosecutor explained that "the 

alcohol situation is the problem here" and that the disposition 

allowed the defendant to be released in order to resolve that 

problem or face the prospect of returning to jail.2 

In December 2021, after being placed in removal proceedings 

and detained by United States Immigration and Customs 

Enforcement (ICE), the defendant moved to withdraw his plea on 

the basis that he was unaware that his plea would result in "per 

1 Count 1 charged strangulation or suffocation and carried a 

potential sentence of two and one-half years' imprisonment. See

G. L. c. 265, § 15D. Count 2 charged assault and battery and 

carried a potential sentence of two and one-half years'

imprisonment. See G. L. c. 265, § 13A. Count 3 charged 

vandalism and carried with it a potential sentence of two years'

imprisonment. See G. L. c. 266, § 126A. 

2 According to the prosecutor's recitation of the crimes, the 

defendant's daughter arrived at a parking lot of an 

establishment in order to pick up her brother and encountered 

the defendant shouting at her not to disrespect him; she 

believed he was intoxicated. The defendant pushed her up 

against her car and held his forearm against her neck, threw her 

towards the car and raised his hand as if to punch her, and 

kicked her car, damaging it.
3

se" removal from the United States. Although the motion was 

supported by the affidavits of the defendant and his plea 

counsel, both averring that they were unaware of the immigration 

consequences of the plea, the judge indicated that he would not 

take plea counsel's affidavit without his testimony.3 

An evidentiary hearing on the motion was scheduled for 

February 16, 2022, postponed to February 22, 2022, and again 

postponed to March 10, 2022.4 Plea counsel was available to 

testify on the first two dates, but the judge was unable to hear 

the matter. On the third date, defense counsel represented that 

plea counsel had been hospitalized the night before and that his 

3 The defendant's attorney offered that plea counsel was 

available by phone, but the judge insisted on live testimony. 

The judge also criticized the defendant's affidavit as being

"unsigned," even though it had an electronic signature. See

G. L. c. 110G, § 9. See also Supreme Judicial Court Updated

Order Regarding Electronic Signatures by Attorneys and SelfRepresented Parties (June 11, 2020) ("In all courts and case 

types, whenever an attorney or self-represented party is 

required to sign a document to be served on another party or 

filed with the court, including an affidavit that must be signed 

by an attorney or self-represented party under the penalties of 

perjury, the attorney or self-represented party may 

electronically sign, unless the court specifically orders 

otherwise"). 

4 The evidentiary hearing was scheduled only after the defendant 

filed a renewed motion to withdraw his plea, in accordance with 

the judge's instructions. We note that the defendant's original 

filing sufficed to present a substantial issue entailing an 

evidentiary hearing concerning factual issues. See Commonwealth

v. Lys, 481 Mass. 1, 6 (2018).
4

future availability was uncertain.5 Counsel offered that plea 

counsel's affidavit could be considered in place of his 

testimony and proceeded with the remaining available witnesses:

the defendant and his daughter, the victim of the crimes to 

which the defendant had pleaded guilty.6 

After hearing, the judge issued a decision in which he gave 

"no weight to plea counsel's affidavit in determining whether he 

gave ineffective advice to the Defendant." He found that the 

defendant had failed to meet his burden in proving deficient 

performance by counsel because the evidence failed to establish 

"exactly what the [d]efendant was advised." Additionally, the 

judge found that "no evidence was presented" that the defendant

had any substantial ground of defense or that an alternate, 

nondeportable sentence could have been obtained. Although the 

judge acknowledged that the defendant having immigrated to the 

United States as a child, having lived in the United States 

since that time, and having no family in Portugal were 

"significant issues," he found no other special circumstances. 

Determining that the defendant was removable due to a 1995 

5 Plea counsel ultimately passed away during the pendency of this 

appeal.

6 As relayed by defense counsel, there was pressure to resolve 

the matter expeditiously as the defendant was in ICE custody and 

in imminent danger of removal. According to counsel, the 

defendant had been removed to Portugal, his country of origin,

by the time of oral argument in this case.
5

conviction of assault and battery by means of a dangerous 

weapon, the judge found that the immigration consequences 

attendant to the charges at issue would not have been 

determinative. The judge concluded that the defendant would 

still have pleaded guilty, even knowing the immigration 

consequences, reasoning that since it took twenty years for 

removal proceedings to begin, the defendant likely would have 

taken the chance that ICE "'would not catch up to him' in the 

future." This appeal followed.

Discussion. We review the denial of a defendant's motion 

to withdraw a guilty plea, treated as a motion for new trial, 

for significant error of law or other abuse of discretion. See 

Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). "That 

discretion, however, 'is not boundless and absolute.'" 

Commonwealth v. Kolenovic, 471 Mass 664, 672 (2015), quoting 

Commonwealth v. Genius, 402 Mass. 711, 714 (1988). "While we 

will not disturb a judge's subsidiary findings which are 

warranted by the evidence, 'ultimate findings and conclusions of 

law, particularly those of constitutional dimensions, are open 

for our independent review.'" Commonwealth v. Cousin, 478 Mass. 

608, 615 (2018), quoting Commonwealth v. Walter, 396 Mass 549, 

553-554 (1986).

Where a motion to withdraw a guilty plea is premised upon 

ineffective assistance of counsel, the defendant must show 
6

"serious incompetency, inefficiency, or inattention of counsel 

-- behavior of counsel falling measurably below that which might 

be expected from an ordinary fallible lawyer -- and, if that is 

found, then, typically, whether it has likely deprived the 

defendant of an otherwise available, substantial ground of 

defence." DeJesus, 468 Mass. at 178, quoting Commonwealth v. 

Clarke, 460 Mass. 30, 45 (2011).

It is well established by now that failure of a lawyer to 

advise a client of the "truly clear" immigration consequences of 

a plea is deficient performance. See Clarke, 460 Mass. at 42, 

quoting Padilla, 559 U.S. at 369 There is no dispute on appeal 

that the defendant's conviction of strangulation or suffocation 

entailing an eighteen-month sentence constitutes an aggravated 

felony for which the immigration consequence is truly clear --

mandatory removal from the United States. See Commonwealth v. 

Gordon, 82 Mass. App. Ct. 389, 398 (2012). The only question is 

whether plea counsel so advised the defendant. The testimony of 

the defendant, as well as the affidavit of plea counsel,

affirmed that no such advice was given, and there was no 

evidence to the contrary. Nevertheless, the judge found that 

the defendant had failed to meet his burden on plea counsel's

deficient performance.

While a judge need not credit even uncontradicted evidence,

Commonwealth v. Lys, 481 Mass. 1, 5 (2018), there should be a 
7

reasoned basis for doing so. See Commonwealth v. Vaughn, 471 

Mass. 398, 405 (2015) (articulating reason for acceptance or 

rejection of affidavit enables appellate court to determine 

whether judge acted within discretion). Here, the judge did not 

explicitly discredit either the defendant's testimony or plea 

counsel's affidavit concerning the immigration advice 

communicated. Rather, the judge found that the defendant 

"failed to produce any evidence as to the exact nature of his 

discussions with his attorney of [fifteen]-plus years." Yet, 

the defendant specifically testified that (aside from the 

warnings on the tender of plea form) he never discussed with 

plea counsel anything related to immigration on this or any 

other case plea counsel represented him on.7 

Consistently, plea counsel averred that he advised the 

defendant of the "general alien warning contained on the tender 

of plea sheet, as required," and that he negotiated the plea

with the district attorney, felt that it was a favorable one,

and "advised [the defendant] to take it." He also specifically 

averred that, at the time he negotiated the plea and advised the 

defendant to take it, he "was not aware of the grave penalties 

7 Although a judge may always want a more fulsome explanation,

the record does not support a finding that the defendant "failed 

to produce any evidence" on the nature of his discussions with 

his attorney. 
8

[the defendant] would inevitably face as a result" and therefore 

"did not advise [the defendant] of these eventual outcomes."

Although the Commonwealth had the ability to present its 

own evidence on this point, it did not. In her crossexamination of the defendant, the prosecutor simply brought out 

the defendant's prior criminal record and the fact that he had 

gone over the tender of plea form with plea counsel and was 

given the alien warnings by the judge during the plea colloquy.8 

In closing, the prosecutor made no argument regarding the 

defendant's showing on plea counsel's deficient performance and 

instead addressed only the prejudice element. 

While credibility determinations are within the judge's 

discretion, the judge must exercise such discretion. See Lys, 

481 Mass. at 6-7 (remand where judge assumed defendant's 

affidavit must be credited in absence of plea counsel's 

affidavit). See also Commonwealth v. Harris, 443 Mass. 714, 728 

(2005) (remand where judge declined to exercise discretion in 

8 In its brief, the Commonwealth argues that, even if plea 

counsel did not advise the defendant of the specific immigration 

consequences of the plea, the defendant received sufficient 

advice through the tender of plea form, which was updated to 

include the language from Padilla, warning that under certain 

circumstances, deportation is "practically inevitable." 

Regardless of specificity, advice on a form is necessarily

conditional and generic. See Commonwealth v. Petit-Homme, 482 

Mass. 775, 788 (2019). It is insufficient to substitute for the 

advice of counsel to an individual defendant regarding specific 

consequences of a particular plea.
9

ruling on motion in limine). Here, the judge erred in 

disregarding the affidavit of plea counsel on the basis that 

plea counsel did not testify. See Commonwealth v. Sylvain, 473 

Mass. 832, 838-839 (2016) (noting that rule on motions for 

postconviction relief contemplates resolution by affidavits in 

some circumstances); Mass. R. Crim. P. 30 (c) (3), as appearing 

in 435 Mass. 1501 (2001). While a judge may take into account 

"the suspicious failure to provide pertinent information from an 

expected and available source," Commonwealth v. Goodreau, 442 

Mass. 341, 354 (2004), this was not such a case. Plea counsel 

was ready and willing to testify on multiple occasions prior to 

his unfortunate hospitalization.9 As there was no reasoned basis 

to reject the undisputed evidence of plea counsel's deficient 

advice in this case, we conclude that the defendant met his 

burden on the performance prong of the ineffective assistance of 

counsel test.

9 To the extent that the judge rejected plea counsel's affidavit

as "not detailed" and "otherwise inadequate," the judge also 

erred. The affidavit clearly set forth that plea counsel was 

unaware of the specific immigration consequences of the plea, 

that he therefore did not advise the defendant of those 

consequences, and that his immigration advice consisted of the 

warnings contained in the tender of plea form. We note that

this admission of ineffective assistance was against plea 

counsel's interest and therefore likely to be credible. See

Mass. G. Evid. § 804(b)(3) (2023) (hearsay statement against 

interest admissible as inherently reliable). 
10

Turning to the question of prejudice, the defendant was 

required to show that, had he been properly advised of the 

consequences of the plea, a decision to reject the plea would 

have been rational under the circumstances. See Clark, 460 

Mass. at 47. To prove rationality, the defendant was required 

to show at least one of the following: (1) an available, 

substantial ground of defense that he could have pursued; (2) a 

reasonable probability that he could have negotiated a plea 

bargain that did not result in dire immigration consequences; or 

(3) special circumstances supporting the conclusion that he

placed, or would have placed, particular emphasis on immigration 

consequences in deciding whether to plead guilty. Id. at 47-48. 

If shown, the defendant must establish that "there is a 

reasonable probability that a reasonable person in the 

defendant's circumstances would have gone to trial if given 

constitutionally effective advice." Lys, 481 Mass. at 7-8. 

"The prejudice determination rests on the totality of the 

circumstances, in which special circumstances regarding 

immigration consequences should be given substantial weight." 

Commonwealth v. Lavrinenko, 473 Mass. 42, 59 (2015).

Although the defendant did not put forth any defense to the 

charges, plea counsel's affidavit provided a detailed 

explanation of how an alternate plea could reasonably have been 

structured to avoid immigration consequences. He indicated that 
11

the exact same guilty plea to the charges could have been 

entered into with the sentence (or perhaps an even harsher 

sentence) being attached to count 2 or 3, with a concurrent 

sentence of less than one year on count 1.10 Although the 

Commonwealth had the opportunity to present its own evidence on 

this point, it did not. It did not even suggest in closing 

argument that plea counsel's proposed alternative disposition 

was not reasonably probable. The judge's refusal to consider 

plea counsel's affidavit apparently led him to erroneously 

conclude that the defendant failed to show a reasonable 

probability that he could have negotiated an alternate plea.

Although the judge did recognize the defendant's special 

circumstances of having immigrated to this country as a child,

having lived in the United States his entire life since that 

time, and having no family in Portugal, the judge did not 

acknowledge any other special circumstances, such as having a 

10 This is borne out by the fact that the tender of plea form 

proposed a single disposition to resolve all three charges in 

the complaint, without attaching the sentence to any particular 

charge. Ultimately, the defendant received the same sentence on 

each charge, with the sentences running concurrently. Since 

count 1 did not include a minimum mandatory sentence, and no 

apparent importance was given the particular charge attached to 

the sentence, it appears that merely attaching the same 

disposition to a different count would have been a reasonable 

probability, particularly where all parties, including the 

prosecutor, victim, and judge, acknowledged that the primary 

concern was getting the defendant to address his problem with 

alcohol.
12

wife and two children in the United States.11 Despite these 

special circumstances, however, the judge determined that, in 

the totality of the circumstances, the defendant was not 

prejudiced. The judge concluded that, due to a 1995 conviction 

of assault and battery by means of a dangerous weapon, the 

defendant was already per se deportable as an aggravated felon. 

He reasoned that since "it took [ICE] over [twenty] years to 

begin [the defendant's] deportation proceedings from his earlier 

convictions, . . . it is not irrational to believe that he would 

have continued to take his chances that [ICE] 'would not catch 

up to him' in the future."

Notwithstanding the assumption that the prior conviction of

assault and battery by means of a dangerous weapon constituted 

an aggravated felony, the judge's totality of the circumstances 

analysis was flawed by the mistaken premise that the defendant's 

removal proceeding was based on a 1995 conviction at all. In 

fact, the defendant's removal was premised solely on the 2020 

conviction of strangulation or suffocation.12 Although the judge 

11 The judge appeared to discount the relevance of the 

defendant's family ties because his wife and one of his children

did not themselves testify. We note that, like plea counsel, 

the defendant's wife and that child were present and prepared to 

testify on prior occasions. And of course the defendant's other 

child -- the victim of the crimes -- did testify in support of 

the defendant.

 

12 Although the defendant had a number of prior convictions on 

his record that may have had some immigration consequences, as 
13

determined that the case against the defendant was strong, and 

due to his criminal record, the defendant was likely to receive 

a significantly harsher sentence after trial and conviction, his 

maximum exposure on the charges was seven years; the plea that 

the defendant accepted entailed an eighteen-month sentence if 

the defendant failed his probationary conditions. The defendant 

testified that he would not have pleaded guilty to avoid a 

prison term if he knew that the plea itself would result in his

removal from his home country of over forty years, separation 

from his wife and children, and exile to a country where he has 

no family. There is nothing in the record that undermines this 

testimony. Indeed, the position is an eminently rational one.13

Added to this is the likely prospect that plea counsel could 

have fashioned a plea disposition that avoided dire immigration 

consequences altogether, the defendant met his burden of showing 

that he was prejudiced.

explained in the defendant's closing argument at the evidentiary 

hearing and again in his brief on appeal, none of them subjected 

him to mandatory removal at the time of his 2020 plea.

13 In Lee v. United States, 582 U.S. 357 (2017), the Court 

considered the issue of prejudice under similar circumstances, 

where the case against the defendant was strong but where the

defendant had lived in the United States for nearly three 

decades, had strong family connections to the United States, and

there was no evidence of any ties to his country of origin. In 

the backdrop of those special circumstances, Court stated: "We 

cannot agree that it would be irrational for a defendant in 

Lee's position to reject the plea offer in favor of trial." Id. 

at 371.
14

Conclusion. The order denying the motion to withdraw the 

guilty plea is reversed, the judgments are vacated, and the 

findings are set aside. 

So ordered.

By the Court (Vuono, Singh & 

Englander, JJ.14),

Assistant Clerk

Entered: February 12, 2024. 

14 The panelists are listed in order of seniority.