NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us SJC-12476 COMMONWEALTH vs. CHRIST O. LYS. Middlesex. September 5, 2018. - November 19, 2018. Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ. Controlled Substances. Practice, Criminal, Plea, Assistance of counsel, New trial. Constitutional Law, Plea, Assistance of counsel. Due Process of Law, Plea, Assistance of counsel. Alien. Complaint received and sworn to in the Marlborough Division of the District Court Department on January 18, 2012. A motion for a new trial was heard by Robert G. Harbour, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Patrick N. Long for the defendant. Gabriel Pell, Assistant District Attorney, for the Commonwealth. John P. Zanini, Assistant District Attorney, for District Attorney for the Berkshire District & others, amici curiae, submitted a brief. LOWY, J. The defendant pleaded guilty in the District Court to violating multiple controlled substances laws. He was 2 a lawful permanent resident who had emigrated from Haiti, and his plea rendered him deportable.1 The Federal government detained the defendant and initiated deportation proceedings against him. The defendant then filed a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), arguing that he had received ineffective assistance of counsel. The defendant claimed, inter alia, that he would not have pleaded guilty if his counsel had properly advised him about the plea's immigration consequences. The motion judge, who was also the plea judge, denied the motion after a nonevidentiary hearing. The defendant appealed, and the Appeals Court affirmed. Commonwealth v. Lys, 91 Mass. App. Ct. 718, 726 (2017). We allowed the defendant's application for further appellate review. In his written decision, the judge found that plea counsel's performance was constitutionally deficient but that the deficient performance did not prejudice the defendant. The Commonwealth now contends that the judge's finding of deficient 1 The defendant was deportable under 8 U.S.C. § 1227(a)(2)(B)(i) (2012) (making aliens convicted of most controlled substances laws deportable) and 8 U.S.C. § 1227(a)(2)(A)(iii) (2012) (making aliens convicted of "aggravated felony" deportable). See Commonwealth v. Clarke, 460 Mass. 30, 32 n.2, 46 (2011). His aggravated felony conviction also precluded him from applying to the United States Attorney General for relief. See 8 U.S.C. § 1229b(a)(3) (2012). 3 performance was erroneous.2 The defendant contends that the judge erroneously found a lack of prejudice. We do not reach the merits of either issue. Rather, we conclude that the judge (1) might have failed to recognize his discretion to credit or discredit the defendant's affidavits as they pertained to plea counsel's allegedly deficient performance, even in the absence of an affidavit from ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals