NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Sylvain 466 Mass. 422 (2013)

CONTRIBUTING EDITOR: ADAM M. FIEDLER

I.

Procedural History

In 2007, the Defendant, Kempess Sylvain, pleaded guilty to possession of a controlled substance.1 Since the defendant was a legal resident and not a citizen, the guilty plea subjected the defendant to automatic deportation from the United States.2 Subsequent to the defendants conviction, the Massachusetts Supreme Judicial Court (SJC) decided Commonwealth v. Clarke, which held that the rule announced in Padilla v. Kentucky regarding a defendants Sixth Amendment right to accurate advice as to the deportation consequences of a guilty plea was not a new rule under Teague v. Lane, and therefore could be applied retroactively to cases on collateral review.3 After the ruling in Clarke, the defendant filed a motion for a new trial, arguing that his attorney was constitutionally deficient in not advising him of the deportation consequences of his plea. 4 The motion was denied, and defendant timely appealed.5 While the defendants appeal was pending, the U.S. Supreme Court decided Chaidez v. United States, which contradicted the SJCs ruling in Clarke.6 Specifically, the Supreme Court held that Padilla announced a new rule under the Teague framework.7 The defendant requested and was granted direct appellate review by the SJC in light of this new decision.8

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Commonwealth v. Sylvain, 466 Mass. 422, 423 (2013). See id. Id. at 423. Id. Id. Id. Commonwealth v. Sylvain, supra at 423. Id.

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II. Facts

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On April 15, 2007, a Boston police officer witnessed the defendant engaging in a sexual act with a prostitute. 9 Upon noticing the police officer, the defendant ingested several small bags which he removed from his coat pocket.10 The officer believed the bags contained drugs.11 Fearing an overdose, the officer intervened and found an additional bag of crack cocaine in the defendants pocket.12 The incident took place within 1,000 feet of a child care center.13 The defendant was arrested and charged with one count of possession of cocaine with intent to distribute and one count of a drug violation in a school zone.14 In exchange for dismissal of the school zone charge, which carried a two year prison sentence, the defendant pleaded guilty to simple possession of cocaine, and was sentenced to eleven months in the house of correction, which was suspended for two years. 15 The guilty plea was entered after the defendant received erroneous advice from his counsel regarding the deportation consequences of his plea.16 In actuality, the defendants guilty plea would result in his deportation from the United States.17 At the time the plea was entered, the Defendants counsel provided an affidavit stating that he was aware the Defendant was not a U.S. citizen, and also that he advised the defendant his guilty plea would not likely result in his deportation.18 The defendant also submitted an affidavit which stated that but for the advice of counsel defendant would not have provided a guilty plea had he been provided accurate advice regarding the deportation consequences.19 III. Issues Presented 1. Whether the U.S. Supreme Court decision in Padilla, holding that a criminal defendant had Sixth Amendment right to accurate advice as to deportation consequences of a guilty plea, could be applied

Id. at 424. Id. 11 Id. 12 Commonwealth v. Sylvain, supra at 424. 13 Id. 14 Id. at 424-425. 15 Id. at 425. 16 See 425-426. 17 See id. at 425. 18 Commonwealth v. Sylvain, supra at 425-426. 19 Id. at 426.
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retroactively to the Defendants case.20 2. Whether defendants right to effective assistance of counsel, as it relates to deportation consequences, is a new rule of criminal procedure under Massachusetts law.21 Whether defendants attorneys erroneous advice constituted ineffective assistance of counsel under article 12 of the Massachusetts State Constitution.22

3.

IV. Holdings and Reasoning 1. The court held that under Federal law, Padilla is considered a new rule of criminal procedure and thus cannot be applied retroactively at the federal level.23 In Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth Amendment requires a criminal defense attorney to give accurate advice regarding the deportation consequences arising from a guilty plea.24 The Supreme Court did not discuss whether the holding would apply retroactively on collateral review, seemingly leaving this decision up to state and lower federal courts.25 However, a prior U.S. Supreme Court case, United States v. Teague, provided a framework for deciding when to retroactively apply these decisions to already decided cases. 26 Under this framework, new constitutional rules of criminal procedure will not apply retroactively to cases on collateral review, while the old rules of criminal procedure will apply retroactively.27 The court defined a new rule of criminal procedure as one that breaks new ground or imposes a new obligation that was not previously required by precedent.28 In Commonwealth v. Clarke, the SJC utilized the Teague framework to determine that the Padilla ruling was an old rule of criminal procedure, and could thus be retroactively applied to cases on collateral review. 29 Specifically, the court found that the Padilla decision was simply an
See id. See id. 22 See id. at 427. 23 See id. at 432. 24 Commonwealth v. Sylvain, supra at 427 (citing Padilla v. Kentucky, 130 S.Ct. 1473, 1478 (2010)).
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Id. Id. at 428 (citing Teague v. Lane, 489 U.S. 288, 301 (1989)). Id. Id. Id. at 429 (citing Commonwealth v. Clarke, 460 Mass. 30, 34 (2011)).

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extension of the courts ruling in United States v. Strickland, applying specific facts to the general standard previously announced. 30 The U.S. Supreme Court decided a case, Chaidez v. United States, which is directly at odds with Clarke, holding that Padilla did announce a new rule, and could not be applied retroactively to cases on collateral review. 31 Specifically, the Supreme Court held that Padilla considered the unsettled preliminary question: whether deportation advice was outside the scope of the Sixth Amendment right to counsel because it involved only a collateral consequence of a conviction.32 Based on this new Supreme Court precedent, the SJC held that Padilla could not be applied retroactively as a matter of federal law.33 2. The SJC held that Padilla did not announce a new rule under Massachusetts law, even though the U.S. Supreme Court held that Padilla did announce a new rule, as each state court is not compelled to blindly follow the U.S. Supreme Courts opinion on what constitutes a new rule.34 The Commonwealth argued that while the court is not required to blindly follow the Supreme Courts opinion, there is a state-law version of the Teague framework which should not be discarded for an undefined alternative method.35 Further, there was no state-law requirement prior to Padilla that compelled counsel to advise their clients regarding the deportation consequences of a guilty plea, so Padilla must have announced a new rule.36 The court disagreed with the Commonwealth, explaining that Padilla simply applied a general pre-existing standard to a specific set of facts.37 Further, the court pointed to the customary practice of criminal defense counsel to warn their clients of the deportation consequences prior to the Padilla ruling.38 In other words, the Padilla ruling did very little to change the practice of criminal law in Massachusetts.39 Since that is the case, the court did not believe that Padilla announced a new rule of criminal procedure and the defendant was free to seek relief under the Sixth

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Commonwealth v. Sylvain, supra at 429. Id. at 431 (citing Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013)). Id. at 430. Id. at 431. Id. at 435. Id. at 426-427. See Commonwealth v. Sylvain, supra at 427. Id. at 435. Id. See id.at 435.

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Amendment.40 3. The court held that under Article 12 of the Massachusetts State Constitution (which includes the state-law version of the Sixth Amendments right to effective assistance of counsel), defense counsel must accurately advise a noncitizen client of the deportation consequences of a guilty plea or a conviction at trial.41 The court utilized identical reasoning in making this determination as it did in holding Padilla did not create a new rule.42 Specifically, the Massachusetts ineffective assistance of counsel standard is a dynamic standard which changes over time and simply applying a set of facts to a general standard does not automatically announce a new rule.43 V. Impact on the Law The SJC ruling that Padilla did not announce a new rule of criminal procedure under Massachusetts law in the face of contradictory Supreme Court precedent breathes new life into the Padilla decision for Massachusetts citizens.44 Under the Supreme Court ruling in Chaidez, there was serious doubt as to whether collateral Sixth Amendment arguments were a thing of the past for cases that were final at the time of Padilla.45 This decision puts those doubts to rest in Massachusetts collateral attacks on incorrect advice regarding deportation consequences will continue to be a viable argument.46 Further, the SJC reaffirmed that state courts are not compelled to agree with Supreme Court decisions as to what constitutes a new rule of criminal procedure.47 State courts are able to determine whether a rule of criminal procedure under Teague or the state-law equivalent can be applied in cases or controversies that are final on the date of the determination.48

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Id. at 436. Id. Commonwealth v. Sylvain, supra at 436. See id. at 437. See id. at 435. See Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013). See Commonwealth v. Sylvain, supra at 435. Id. Id.