Massachusetts Criminal Lawyer Blog

Last month, the Supreme Judicial Court issued a decision addressing judicial notice of immigration consequences to non-citizens who plead guilty to a criminal case. The case – Commonwealth v. Valdez – reverses the denial of the defendant’s motion for a new trial where the judge who conducted the defendant’s plea colloquy had failed to advise the defendant, as required by G. L. c. 278, §29D, “that conviction may have the consequence of exclusion from admission to the United States.” In so ruling, the SJC (1) clarified “what [a] defendant must show to establish that his conviction ‘may have’ the consequence of exclusion from admission to the United States”; and (2) determined that the defendant here had met that burden.

The background was as follows. “The defendant was born in the Dominican Republic and is a citizen of that country. In 1985, he was admitted to the United States as a lawful permanent resident alien.” In 1989, he pleaded guilty to an indictment alleging larceny of a motor vehicle and was sentenced to a prison term of five years at MCI-Concord. “The defendant is now a resident of Connecticut and owns his own business selling automobiles. Since 1997, he has been in a relationship with a citizen of the United States, with whom he has three children. No immigration proceedings have been commenced against the defendant by Federal authorities.” In 2013, the defendant — wishing to travel to the Dominican Republic and fearing that he might not be able to reenter the United States — retained an immigration attorney. On the basis of the attorney’s advice that the defendant’s conviction would result in removal proceedings against him if he were to leave the United States and then seek to reenter, the defendant moved to withdraw his guilty plea and vacate his conviction. His motion was predicated on the judge’s acceptance of his plea without having advised him that his conviction “may have [the] consequence[] of … exclusion from admission to the United States,” as required by c.278, §29D. The motion judge agreed that the defendant had not been adequately advised in his plea colloquy, but “nonetheless denied the motion because, citing Commonwealth v. Grannum, 457 Mass. 128 (2010), she found that the defendant ‘ha[d] not established that he would be subject to an express written policy of exclusion should he choose to leave the United States and desire to re-enter,’ and therefore ‘ha[d] shown no more than a hypothetical risk’ of exclusion.”

Continue reading →

On Sunday, July 31, 2016, the Massachusetts Legislature concluded formal sessions for the 2015-2016 Legislative Session.  Although bills that require roll call votes can no longer move forward, numerous pieces of legislation remain alive and can be enacted during informal sessions until midnight on Tuesday, January 3, 2017. This can occur if the two branches agree and there is no objection raised by a member on the floor when the bill is being given a reading. This is good news for a number of bills relevant to criminal justice.  Most of the following bills have been acted on favorably by the Senate and are pending in House Way & Means Committee (HW&M). Bills that have made it through the Senate, are pending in HW&M, and are awaiting final action in the House are:

S.727 – An Act Relative to Tagging.  This bill removes the collateral consequence of loss of driver’s license upon conviction of such an offense.

S.728 – An Act Relative to Vandalism.  This bill, like the tagging bill, removes the collateral consequence of loss of driver’s license upon conviction of such an offense.

S.795 – An Act Relative to Adjusting the Credit on Days Imprisoned for Nonpayment of Fines.  This bill adjusts the credit calculated for days imprisoned for the nonpayment of a fine against the amount owed.  Existing law allows a credit of $30/day.  This legislation adjusts for inflation and increases the credit to $60/day.  Continue reading →

The Supreme Judicial Court recently issued a new decision on two companion cases – Commonwealth v. Diggs and Commonwealth v. Soto. The decision addresses pre-trial detention under the dangerousness statute (G.L. c.276, §58A) and under what circumstances the Commonwealth may move for dangerousness. This statute specifically allows the Commonwealth to move for a “dangerousness hearing” where a defendant is held “under arrest” and charged with a felony that involves the use, attempted use, or threatened use of physical force as an element of the offense. During the hearing, the court must make a determination as to whether the defendant is in fact “dangerous” under the statute – i.e., that no conditions of release will reasonably assure the safety of any other person or the community. In the event that the defendant is found to be dangerous, the court may elect to release him with certain conditions. Alternatively, the court may determine that even the imposition of conditions would be insufficient to ensure the safety of another person or the community, and therefore order the defendant to be held without bail for up to 120 days.

The background as to Diggs was as follows. “[He] allegedly threatened to burn down a house [in Watertown] … while the [residents were] inside.” “[A] criminal complaint issued charging [him] with threatening to commit a crime” and the Watertown police obtained an arrest warrant. Initially, the police were unable to locate Diggs to execute the warrant. However, he came to the Commonwealth’s attention several months later, when he was being held on a probation detainer in an unrelated matter in Plymouth County. “When authorities from the … house of correction [in that county] transported Diggs to the District Court to appear for arraignment on those charges, the Commonwealth moved for pretrial detention based on dangerousness. Diggs argued that he was not subject to pretrial detention because, although he was in the custody of Plymouth County on charges of a probation violation, he had not been arrested by the Watertown police in connection with the complaint charging him with threatening to commit a crime, and thus was not ‘held under arrest’ for an enumerated offense [under §58A] at the time of his arraignment. The judge rejected Diggs’s challenge to the legality of the proceedings, conducted a dangerousness hearing pursuant to … §58A, and ordered [that] Diggs [be] held in pretrial detention without bail.” Continue reading →

On August 8, 2016, the SJC issued a decision in Commonwealth v. Henry, holding that judges must take a defendant’s ability to pay into consideration when assessing whether to order restitution, and in determining the amount of restitution that a defendant can be ordered to pay. The Court also set forth several guidelines regarding the imposition of restitution as a condition of probation.

The facts of the case are as follows. The defendant was employed as a cashier at a Walmart store. “A Walmart video camera captured [her] ‘free-bagging’ items; that is, with certain customers, she placed some store items into bags without scanning the items at the cash register, so that these customers received these items without paying for them. As a result,” the defendant was charged with larceny over $250 under G. L. c. 266 § 30. She admitted to facts sufficient to warrant a finding of guilty and was placed on administrative probation, one condition of which was the payment of restitution. At the ensuing restitution hearing, the Commonwealth presented evidence as to the retail sales price of the stolen items and as to the percentage of “markup” on items sold in the store. The defendant testified that Walmart had terminated her employment, that she had been found ineligible for unemployment benefits, and that she had no income of any kind. In his restitution order, the judge “declared that the loss is measured by the retail loss and ordered that restitution in [that] amount … be paid during the period of probation at a rate to be determined by the probation department.”

In its decision, the SJC set forth the following guidelines regarding restitution as a condition of probation. First, a judge must “consider the defendant’s ability to pay when setting the restitution amount because a judge may order restitution in a criminal case only as a condition of probation” “and a probationer cannot be found in violation for failing to pay a restitution amount that the probationer cannot reasonably afford to pay.” “Burdening a defendant with [the] risks [associated with a violation of probation] by imposing restitution that the defendant will be unable to pay violates the fundamental principle that a criminal defendant should not face additional punishment solely because of his or her poverty.” Second, the SJC “invoke[d] [its] superintendence power to declare that a judge may not extend the length of probation where a probationer violated an order of restitution due solely to an inability to pay.” “An extension of the period of probation punishes a defendant” by “extending the restrictions on a defendant’s liberty arising from probation” and by “subject[ing] the probationer to additional punishment solely because of his or her poverty,” in the event that he commits a new offense during the extended probationary term. Third, “the length of probation supervision imposed at the time of sentence should not be affected by the financial means of the defendant or the ability of the defendant to pay restitution…. [Therefore,] the ability to pay determination should be made only after the judge has determined the appropriate length of the probationary period based on the amount of time necessary to serve the twin goals of rehabilitating the defendant and protecting the public.” Fourth, “[t]he monthly amount [of restitution] must be determined by the judge; it cannot be delegated to the probation department.” Fifth, the SJC defined, “for the first time,” “the legal standard for determining the defendant’s ability to pay restitution”: such payment should not impinge on the defendant’s ability “to meet minimum basic human needs such as food, shelter, and clothing for the defendant and his or her dependents.” Sixth, “in cases of retail theft, the amount of actual economic loss for purposes of restitution is the replacement value of the stolen goods unless [as in this case] the Commonwealth proves by a preponderance of the evidence that the stolen goods would otherwise have been sold, in which case the retail sales value is the better measure of actual loss.” Continue reading →

In July of 2015, amendments to the Massachusetts Rules of Professional Conduct took effect. The revisions covered a wide range of issues, including post-trial communications with jurors. Such commuication is specifically governed by Mass. R. Prof. C. 3.5(c). The revised rule now permits lawyers to contact jurors after their discharge without first securing leave of court (as was previously required by the old rule) so long as (i) the communication is not otherwise prohibited by law or court order, (ii) the juror has not made known to the lawyer (directly or otherwise) a desire not to communicate with the lawyer, and (iii) the communication involves no misrepresentation, coercion, duress or harassment.

In a recent case – Commonwealth v. Moore – the Supreme Judicial Court considered the application of the new rule. The SJC specifically responded to five questions reported by a Superior Court judge concerning the effect of the 2015 amendment to Rule 3.5(c), and whether it overruled certain holdings from prior case law governing the issue of post-trial communications with jurors, names Commonwealth v. Fidler, 377 Mass. 192 (1979). In Fidler, the SJC specifically announced the rule that required all “post-verdict contact with and interviews of jurors by attorneys to occur under court supervision and direction, and to be permissible ‘only if the court [were to find] some suggestion that there were extraneous matters in the jury’s deliberations…. [C]ounsel, litigants, and those acting for them [were prohibited from] independently contact[ing] jurors after a verdict [was] rendered.”

The facts of Moore are as follows: the defendant had a trial by jury in 2012 and was convicted of four offenses, including first-degree murder.  During the course of the trial, issues regarding possible exposure of the jurors to extraneous influences arose. In 2015, two weeks after the effective date of the amendment to Rule 3.5(c), Moore’s appellate attorney communicated by mail with the jurors who had deliberated at Moore’s trial. “[T]he Commonwealth [then] filed an emergency motion for judicial intervention to prohibit post-conviction inquiry of the jury.” After a hearing, the judge reported to the Appeals Court the five questions at issue here.

The five reported questions and the SJC’s responses to them were as follows. Question 1: “‘In revising Rule 3.5 of the Massachusetts Rules of Professional Conduct to permit attorney originated communications with discharged jurors, did the Supreme Judicial Court implicitly overrule the prohibition against attorney originated communications with jurors as set forth in Commonwealth v. Fidler, 377 Mass. 192, 203-204 (1979)?’” SJC’s response: “[W]e answer the first reported question in the affirmative: by adopting rule 3.5 (c), we effectively overruled our rule, first stated in Fidler, that prohibited attorney-initiated, post-verdict contact of and communications with jurors free from court oversight…. To the extent that the Fidler rule operated to define a manner of contact and communication with jurors post-verdict that was ‘prohibited by law’ before the adoption of rule 3.5 (c), the latter effectively superseded the Fidler rule and the prohibition against unsupervised, post-verdict attorney communication that the Fidler rule had imposed. This is not to say, however, that rule 3.5 (c) implicitly overruled this court’s opinion in Fidler in its entirety, a point that leads us to the second reported question.” Continue reading →