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Refugee Status is a 'Special' Special Circumstance re Withdrawal of Guilty Plea: Commonwealth v. Lavrinenko

October 15, 2015 (1 min read)

"The issue on appeal is whether a noncitizen defendant, admitted into the United States as a refugee, is entitled to withdraw his guilty plea to a complaint charging assault by means of a dangerous weapon, where his attorney did not make a reasonable inquiry regarding the defendant's citizenship, and therefore did not learn that he was a refugee. We conclude that, under art. 12 of the Massachusetts Declaration of Rights, constitutionally effective representation of a criminal defendant requires defense counsel to make a reasonable inquiry of the defendant to determine whether he or she is a citizen of the United States and, if the defendant is not, to make a reasonable inquiry into the defendant's immigration status, including whether the defendant was admitted into this country as a refugee or has been granted asylum. We also conclude that, in determining whether a defendant suffered prejudice from counsel's deficient performance, "special circumstances" regarding immigration consequences, as contemplated in Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011), should be given substantial weight in determining, based on the totality of the circumstances, whether there is a reasonable probability that the defendant would have rejected the plea offer and insisted on going to trial had counsel provided competent advice regarding the immigration consequences of the guilty plea. Moreover, a defendant's status as a refugee or an asylee is a special circumstance entitled to particularly substantial weight. Because the motion judge found that counsel's performance was deficient but did not consider the defendant's refugee status in finding that the defendant suffered no prejudice, we vacate the denial of the motion for a new trial and the motions for reconsideration, and remand the matter to the District Court for further proceedings consistent with this opinion." - Commonwealth v. Lavrinenko, Oct. 5, 2015.  [Hats off to Laura Murray-Tjan, for Committee for Public Counsel Services, amicus curiae!]