Distribution of Class D Marijuana MGL c 94C § 32C(a); Motion for New Trial granted, conviction vacated; charges dismissed after Commonwealth fails to prosecute.

• Steven Topazio wrote this June 12, 2019 at 6:10 pm

The client, a 56-year-old individual, came to the United States from Honduras in 1989 and is not a United States citizen.  Working for the same employer for the last seven years doing maintenance work, the client was summonsed to court in 2001 and charged with possession with intent to distribute marijuana in a school zone.  The client was represented by counsel back in 2001 and due to the nature of the charges, was told he would be incarcerated if convicted, so he agreed to a plea bargain where he pled guilty to distribution of marijuana and received a 2 year suspended sentence in exchange for the Commonwealth agreeing to dismiss the school zone charge, which carried a mandatory 2 year committed sentence if convicted.  The client successfully completed his probation but now faced deportation consequences several years later due to the drug conviction and hired Attorney Topazio to see if he could vacate the guilty conviction.    Attorney Topazio obtained the old police report which read: “as part of an ongoing investigation into drug and gang activity PO’s observed a known drug dealer and S/P above involved in a drug transaction.  PO’s approached S/P above and asked if he had any drugs and S/P took a large P/B out of his waistband area containing marijuana, a separate medium P/B containing marijuana and numerous heat sealed bags….”.  Attorney Topazio filed a motion for new trial alleging ineffective assistance of counsel arguing that his client was scared when he changed his plea and feared that he might go to jail if convicted due to the school zone charge, lose his job along with his ability to provide for his family, and did not understand the immigration consequences.  Attorney Topazio argued that his client was confused by the charges as he denied being involved in any drug distribution criminal activity and was not explained his immigration consequences when he chose to follow the advice of plea counsel, believing it was his only option in a new and difficult circumstance, to avoid going to jail on a school zone violation. Attorney Topazio argued that his client tendered a guilty plea on the distribution charge in consideration of the Assistant District Attorney dismissing the School Zone charge prior to a change in the law which now places a burden on defense counsel to explain the immigration consequences to their client.   Attorney Topazio argued that a defendant’s guilty plea should be vacated, and a new trial ordered, as if it appeared that justice may not have been done in this case, alleging ineffective assistance of counsel for plea counsel’s failure of not explaining the immigration consequences to the client.  The court agreed with Attorney Topazio relying on the case of Padilla v. Kentucky, 130 S. Ct. 1473, 1480-81 (2010) that a defense counsel’s failure to correctly advise a defendant of immigration consequences of his guilty plea is grounds for allowing a motion for new trial, especially where the immigration consequences are clear.    The Motion for New trial was granted by the court, vacating the client’s previous admission/conviction thus reopening the case.  Attorney Topazio scheduled the case for trial and had the case dismissed by the court on the day of trial when the Commonwealth was not prepared to proceed.