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SJC-11964

COMMONWEALTH vs. MANUEL ANTONIO MERCADO.

Suffolk. February 10, 2016. - April 6, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, 

& Hines, JJ.

Controlled Substances. Alien. Constitutional Law, Plea, 

Assistance of counsel, Retroactivity of judicial holding. 

Due Process of Law, Plea, Assistance of counsel. Practice, 

Criminal, Plea, Assistance of counsel, Retroactivity of 

judicial holding.

Complaint received and sworn to in the East Boston Division 

of the Boston Municipal Court Department on February 26, 1990. 

A motion for a new trial, filed on March 18, 2015, was 

heard by John E. McDonald, Jr., J. 

The Supreme Judicial Court granted an application for 

direct appellate review. 

Benjamin L. Falkner for the defendant.

John P. Zanini, Assistant District Attorney, for the 

Commonwealth.

Emma C. Winger, Jennifer Klein, & Wendy S. Wayne, Committee 

for Public Counsel Services, for Committee for Public Counsel 

Services & another, amici curiae, submitted a brief.
2

CORDY, J. In Commonwealth v. Sylvain, 466 Mass. 422, 423-

424 (2013), S.C., 473 Mass. 832 (2016), we affirmed our decision 

in Commonwealth v. Clarke, 460 Mass. 30 (2011), that, under 

Massachusetts law, defense counsel's duty to provide noncitizen 

defendants with accurate advice regarding the deportation 

consequences of pleading guilty (or being convicted at trial), 

as articulated by the United States Supreme Court in Padilla v. 

Kentucky, 559 U.S. 356, 360 (2010), was to be applied 

retroactively on collateral review.1 See Clarke, supra at 31. 

We set the date of retroactivity at April 1, 1997, the effective 

date of the Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-

546 (IIRIRA), which, together with the enactment of the 

Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-

132, 110 Stat. 1214 (effective Apr. 24, 1996) (AEDPA), made 

deportation for noncitizens convicted of certain criminal 

offenses virtually inevitable. See Padilla, supra at 363-364. 

See also Clarke, supra at 41.

The offense to which the defendant pleaded guilty is 

possession of a class A substance (heroin) in violation of G. L. 

 

1 Our decision in Commonwealth v. Sylvain, 466 Mass. 422 

(2013), S.C., 473 Mass. 832 (2016), came in the aftermath of 

Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013), in which 

the United States Supreme Court concluded that its decision in 

Padilla v. Kentucky, 559 U.S. 356 (2010), established a new rule 

and therefore was not retroactive in effect under Federal 

precedent.
3

c. 94C, § 34. Although he received a suspended sentence, the 

statute provides for a possible penalty of up to two years in a 

house of correction, and consequently, deportation was virtually 

inevitable under the provisions of AEDPA.2 His guilty plea was 

entered after the effective date of AEDPA, but before the 

effective date of IIRIRA. Thus, the first issue we must decide 

in this case is whether the retroactivity affirmed in the 

Sylvain case should extend back to the effective date of AEDPA, 

April 24, 1996, for convictions of offenses for which AEDPA 

eliminated the then available protections (or discretionary 

waivers) for noncitizens who were sentenced to less than one 

year of imprisonment for controlled substance convictions. For 

the reasons articulated in Clarke and Sylvain, we conclude that 

it should.3

 

2 Prior to enactment of the Antiterrorism and Effective 

Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996) 

(AEDPA), a noncitizen but legal permanent resident, who might 

have become deportable for criminal convictions, had a defense 

to deportation by way of a discretionary waiver under § 212(c) 

of the Immigration and Naturalization Act of 1952. See 

Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 297 

(2001) (INS). The class of noncitizens eligible for § 212(c) 

relief was dramatically reduced by AEDPA, which precluded such 

relief for (among other crimes) any aggravated felony conviction 

(regardless of sentence) and any controlled substance or firearm 

conviction for which a maximum imprisonment of one year or more 

may be imposed. Id. See § 440(d) of AEDPA, 110 Stat. at 1277. 

The Illegal Immigration Reform and Immigrant Responsibility Act, 

Pub. L. No. 104-208, 110 Stat. 3009-546 (1996), eliminated 

§ 212(c) relief entirely. INS, supra.

3 The Commonwealth has not argued otherwise in this appeal.
4

The next issue we need to decide is whether, in the 

circumstances of this case, the defendant's motion for a new 

trial was properly denied. For the reasons set forth below, we 

vacate the denial and remand the case to the motion judge for 

further proceedings.

It is uncontested that the defendant came to the United 

States in 1987 at the age of fourteen. Most of his family lives 

in Massachusetts, but his father still resides in his home 

country of the Dominican Republic. The defendant is not a 

United States citizen and his primary language is Spanish. He 

was arrested at Logan Airport on February 23, 1990, and charged 

with possession with intent to distribute a class A substance 

(heroin). After his arraignment, he fled Massachusetts and 

lived in Florida.4

The defendant returned to Massachusetts in 1996, his 

default was removed, and he was held in custody pending the 

resolution of the criminal complaint. On February 7, 1997, he 

pleaded guilty to the lesser charge of possession of a class A 

substance, for which he was sentenced to one year in a house of 

 

4 In Florida, he was apparently convicted of another 

criminal offense.
5

correction suspended for one year with community service 

requirements.5

More than seventeen years later, on August 4, 2014, he 

received a notice to appear in which the United States

Department of Homeland Security alleged that he was a removable 

alien because of his conviction of possession of a class A 

substance.6 On March 18, 2015, the defendant filed a motion for 

a new trial in the present case, alleging that his attorney was 

constitutionally ineffective for failing to advise him 

adequately as to the likely deportation consequences of his

guilty plea.

A hearing on the motion was held in the Boston Municipal 

Court, at which the attorney who had represented the defendant

at the plea tender testified, as did the defendant himself. 

Their testimony differed on several critical points. For 

example, the attorney testified that she advised the defendant 

that there might be immigration consequences if he was convicted 

 

5 In November, 1996, under the then existent two-tier trial 

de novo system in the District Court, the defendant had offered 

an admission to sufficient facts to the possession with intent 

complaint with the hope of receiving a continuance without a 

finding disposition. He received a suspended sentence instead 

and appealed to the jury session in the Chelsea Division of the 

District Court Department, where he subsequently pleaded guilty 

to the reduced charge.

6 Subsequently, on August 26, 2015, the United States 

Immigration Court ordered the defendant deported to the 

Dominican Republic.
6

and that he should consult an immigration attorney as to what 

those consequences could be. The defendant testified that no 

such advice was given. The attorney further testified that an 

interpreter was not necessary in her conversations with the 

defendant, and that the defendant told her that he consented to 

the police search of his coat at Logan Airport (in which the 

heroin was found), and thus a motion to suppress was not viable. 

The defendant, however, testified that he used someone to 

interpret for him arranged by his mother on the day of his 

guilty plea, that he did not tell his attorney that he consented 

to the search, and that he had just picked up the coat from the 

floor after it had been dropped by some unknown third party.

Having observed this testimony, the motion judge was in a 

position to make the credibility assessments necessary to a 

determination whether counsel's advice was deficient and, if so, 

whether the defendant had met his burden to prove that there was 

"a reasonable probability that, but for counsel's errors, he 

would not have pleaded guilty and would have insisted on going 

to trial." Clarke, 460 Mass. at 47, quoting Hill v. Lockhart, 

474 U.S. 52, 59 (1985). In other words, the defendant must 

offer evidence sufficient to "convince the court that a decision 

to reject the plea bargain would have been rational under the 
7

circumstances." Clarke, supra, quoting Padilla, 559 U.S. at 

372.

7

Unfortunately, the judge made no findings after the hearing 

concluded, but simply denied the motion. This may have been the 

product of the Commonwealth's understandable argument that the 

holding in Sylvain was retroactive only to convictions accruing 

after April 1, 1997, a ruling we have now clarified.

Consequently, we cannot be certain on what ground or 

grounds the judge may have based his denial. The denial is 

therefore vacated and the matter remanded for further 

proceedings consistent with this opinion.8

So ordered.

 

7 As we noted in Commonwealth v. Clarke, 460 Mass. 30, 47-48 

(2011), "[t]o prove the latter proposition, the defendant bears 

the substantial burden of 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" (citations, quotations, and footnote omitted).

8 On remand, the motion judge may order a further 

evidentiary hearing, or he may make findings on the basis of the 

evidence presented at the prior hearing.