Commonwealth v. Cano

NOTICE: All slip opinions and orders are subject to formal

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13-P-1672 Appeals Court

COMMONWEALTH vs. HILDEBRANDO CANO.

No. 13-P-1672.

Middlesex. October 8, 2014. - April 3, 2015.

Present: Green, Rubin, & Agnes, JJ.

Practice, Criminal, Admission to sufficient facts to warrant

finding, Plea, New trial, Defendant's competency, Waiver,

Assistance of counsel. Constitutional Law, Plea,

Assistance of counsel. Due Process of Law, Plea,

Assistance of counsel. Waiver. Incompetent Person, Plea

to criminal charge. Alien. Abuse Prevention. Assault and

Battery by Means of a Dangerous Weapon.

Complaints received and sworn to in the Lowell Division of

the District Court Department on January 8, 1988, June 22, 1992,

August 23, 1996, and June 2, 2006.

Motions for a new trial, filed on March 7, 2013, were

considered by Neil J. Walker, J.

Thomas Stylianos, Jr., for the defendant.

Emily Walsh, Assistant District Attorney, for the

Commonwealth.

GREEN, J. The defendant appeals from orders of the

District Court, denying his motions for new trial which sought

2

to vacate guilty pleas1 entered on various charges. The

defendant contends that his motions raised substantial issues,

warranting evidentiary hearings. Specifically, he claims that

his plea counsel failed to advise him of the immigration

consequences of his pleas, and that counsel's constitutionally

deficient performance in that respect caused him prejudice. See

Padilla v. Kentucky, 559 U.S. 356 (2010). Separately, he

asserts that he lacked the mental competency required to enter

each of the pleas knowingly and voluntarily. We discern no

error of law or abuse of discretion in the motion judge's

rejection of the latter claim, but agree that the defendant's

motion directed to his 1997 guilty plea to the charge of assault

by means of a dangerous weapon raised issues sufficient to

warrant an evidentiary hearing. We accordingly vacate the order

denying the defendant's motion for new trial on the 1997 guilty

pleas only as to the charge of assault by means of a dangerous

weapon and remand the matter for further proceedings. We

otherwise affirm that order and the remaining orders.

Background. The defendant's new trial motions sought to

vacate guilty pleas he entered on five charges, on four separate

occasions beginning in 1988 and ending in 2006. On January 8,

1988, the defendant pleaded guilty to a charge of shoplifting

1

For simplicity, we refer to the defendant's admissions to

sufficient facts as guilty pleas. See Commonwealth v. Grannum,

457 Mass. 128, 130 n.4 (2010).

3

(1988 plea), for which he was ordered to pay a fifty dollar

fine. On September 3, 1992, the defendant pleaded guilty to a

charge of shoplifting (third or subsequent offense) (1992 plea),

and was sentenced to one year of probation. On May 21, 1997,

the defendant pleaded guilty to a charge of assault by means of

a dangerous weapon and a charge of threatening to commit a crime

(1997 pleas), and was again sentenced to one year of probation.

Finally, on December 14, 2006, the defendant pleaded guilty to a

charge of violating an abuse prevention order (2006 plea), and

was sentenced to probation for a period ending on November 8,

2007. The dockets for the 1997 pleas and the 2006 plea reflect

that the judges who accepted those pleas administered the alien

warnings required by G. L. c. 278, § 29D.2

By letter dated March 7, 2013, the defendant filed motions

for new trial in which he sought to withdraw his guilty pleas in

all four of the above-described cases. He asserted ineffective

assistance of counsel under Padilla v. Kentucky, supra, as a

ground for relief in his motions directed to the 1992 plea, the

2

The docket for the 1997 pleas recites that the defendant

received a warning under "279 §29D." We consider the reference

to "279" to be a typographical error. See Commonwealth v.

Marques, 84 Mass. App. Ct. 203, 205 n.8 (2013). The defendant

does not argue that the judge who accepted the 1988 plea and the

1992 plea did not administer the required alien warnings

incident to those two pleas.

4

1997 pleas, and the 2006 plea.3 As an independent ground

applicable to all five pleas, he asserted that he was not

mentally competent to plead guilty on any of the four occasions.

A judge of the District Court (who also was the plea judge for

the first four of the five pleas challenged by the defendant)

denied all four motions without a hearing and without making any

findings of fact. We reserve description of the factual

predicate submitted by the defendant in support of his motions

for our discussion of the two grounds on which he sought relief.

Discussion. A motion for new trial is the proper vehicle

through which to request that a guilty plea be vacated.

Commonwealth v. Scott, 467 Mass. 336, 344 (2014). A judge "may

grant a new trial at any time if it appears that justice may not

have been done." Mass.R.Crim.P. 30(b), as appearing in 435

Mass. 1501 (2001) (rule 30[b]). "On a motion for a new trial,

the judge may rule on the motion 'on the basis of the facts

alleged in the affidavits without further hearing if no

substantial issue is raised by the motion or affidavits.'"

Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004), quoting

from Mass.R.Crim.P. 30(c)(3), 378 Mass. 900 (1979). "Assessment

of whether the motion and supporting materials suffice to raise

a 'substantial issue' involves consideration of the seriousness

of the issue itself and the adequacy of the showing that has

3

The defendant entered the 1988 plea without counsel.

5

been made with respect to that issue." Commonwealth v.

Goodreau, supra. We review the judge's decision "to determine

whether there has been a significant error of law or other abuse

of discretion." Commonwealth v. Grace, 397 Mass. 303, 307

(1986).4

1. Competency. "Due process requires that a plea of

guilty be accepted only where 'the contemporaneous record

contains an affirmative showing that the defendant's plea was

intelligently and voluntarily made.'" Commonwealth v. Scott,

supra at 345, quoting from Commonwealth v. Furr, 454 Mass. 101,

106 (2009). Because the waiver of rights inherent in the tender

of a guilty plea must be knowing and voluntary, "a defendant

must possess a certain degree of competence to plead guilty.

'The test of competence to plead is similar to that for standing

trial.'" Commonwealth v. Robbins, 431 Mass. 442, 445 (2000),

quoting from Commonwealth v. Russin, 420 Mass. 309, 316 (1995).

In support of his contention that he was mentally

incompetent to enter the challenged guilty pleas knowingly and

voluntarily, the defendant submitted the report of Dr. Lois

4

Though a failure to make findings of fact, as required by

rule 30(b), is not per se reversible error, we would have been

"materially aided," Commonwealth v. Dunnington, 390 Mass. 472,

478 (1983), if the motion judge in the present case had done so,

particularly insofar as the grounds upon which the defendant's

motions rely are set out in the materials submitted with his

motions, rather than the record of a full trial. Contrast

Commonwealth v. Siciliano, 19 Mass. App. Ct. 918, 920 n.1

(1984).

6

Condie, a licensed psychologist. In her report, Dr. Condie

described her examination of the defendant, including her

conclusions regarding his cognitive limitations. She observed

that the defendant has a full scale intelligence quotient (IQ)

of fifty-six, putting him in the lowest two percent of the

population. She also opined that his adaptive skills ranged

from an age equivalent of six years and six months to fourteen

years and seven months, with most skills clustering in the

eleven to thirteen year old range. As Dr. Condie explained in

her report, "using [the American Psychiatric Association's

Diagnostic and Statistical Manual of Mental Disorders (4th ed.

2000)] criteria, [the defendant] would be described as having

Mild Mental Retardation because his intellectual abilities fall

in the range 55-70, and his adaptive skills are like that of a

preadolescent child." She also observed that the defendant "has

difficulty reading simple paragraphs, simple books, the

newspaper, or magazines. He can print his name, but he has

difficulty spelling and writing complete sentences. . . . He

does not manage his checking account. His mother takes care of

his finances." According to Dr. Condie's report, the defendant

cooks for himself, but has difficulty following complicated

recipes due to his limited ability to read. He cleans his own

apartment, and is able to clean his clothes and himself.

However, his mother arranged his medical and dental

7

appointments, and gave him reminders of his probation

appointments. The defendant does not have a driver's license,

because he was unable to read the driver's manual or take the

written test.

While there is no question that the defendant is of

significantly below average intelligence, a defendant's low IQ

alone does not determine whether he is competent to stand trial,

or to enter a guilty plea. See Commonwealth v. Prater, 420

Mass. 569, 574-575 (1995). Cf. Commonwealth v. Daniels, 366

Mass. 601, 607 (1975) (fact that defendant was mildly to

moderately mentally retarded, with an IQ of fifty-three, did not

compel conclusion that he did not knowingly and willingly waive

his Miranda rights). "Rather, the test is framed in terms of

the defendant's functional abilities: 'whether [the defendant]

has sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding - and whether he has

a rational as well as factual understanding of the proceedings

against him.'" Commonwealth v. Goodreau, 442 Mass. at 350,

quoting from Commonwealth v. Russin, 420 Mass. at 317.5

5

Where, as in the circumstances of the 1988 plea, the 1992

plea, and the 1997 pleas, the motion judge was also the plea

judge, we owe substantial deference to his assessment of the

defendant's competence because the judge had the opportunity to

observe the defendant directly during the proceedings. See

Commonwealth v. Prater, supra at 574.

8

Considered against that test, the defendant's submission is

deficient. Most significantly, it contains no suggestion that

the defendant's limitations rendered him unable to consult with

a rational degree of understanding with his lawyers regarding

the charges he faced.6 See Commonwealth v. Goodreau, supra.

There is likewise no indication in the record that the

defendant's competency was ever identified, much less raised, by

anyone -- whether his counsel, the prosecutor, or the judge --

as a topic warranting further inquiry on any of the four

occasions on which he entered the challenged pleas. See

Commonwealth v. Goldman, 12 Mass. App. Ct. 699, 708 (1981).

While certainly not dispositive of the question, see

Commonwealth v. Adkinson, 80 Mass. App. Ct. 570, 585 (2011), it

discourages us from speculating that the limitations observed by

Dr. Condie might in fact have impaired the defendant's ability

to participate in the plea proceedings despite Dr. Condie's

6

Instead, Dr. Condie's opinion and recommendations are

addressed entirely to the topic of the difficulties the

defendant would face, were he to be deported to Colombia and

required to live there independently. While, as we discuss

below, such considerations are highly relevant to the question

of whether "special circumstances" might have led the defendant

to refuse to plead guilty, had he been properly advised of the

immigration consequences of a plea, see Commonwealth v. Clarke,

460 Mass. 30, 47-48 (2011), they do not determine or

particularly illuminate the question of his competence to tender

a plea.

9

failure to draw such a connection directly in her report.7 We

discern no error of law or abuse of discretion in the conclusion

by the motion judge that the materials submitted in support of

the defendant's motions for new trial did not raise a

substantial issue warranting an evidentiary hearing or a new

trial. See Commonwealth v. Goodreau, supra at 354-355.8

2. Ineffective assistance of counsel. Citing Padilla v.

Kentucky, 559 U.S. 356, and Commonwealth v. Clarke, 460 Mass. 30

(2011), the defendant contends that he should be allowed to

withdraw his 1997 plea on the charge of assault by means of a

dangerous weapon and his 2006 plea on the charge of violating an

abuse prevention order, because his counsel in those two

7

We note as well that, despite his low IQ, the defendant

graduated from high school (albeit at age twenty-three), and had

managed to maintain employment in various menial jobs during his

adulthood.

8

Though we discern no abuse of discretion in the motion

judge's implicit conclusion that the defendant's submission did

not raise a substantial issue entitling him to an evidentiary

hearing on the question of his mental competency, as discussed

below we conclude that the defendant is entitled to an

evidentiary hearing on the question of "special circumstances"

that might have caused him to place particular emphasis on

immigration consequences in deciding whether to plead guilty.

The defendant remains free to introduce additional related

evidence concerning his mental competence at that hearing and,

if such additional evidence establishes that he was not

competent at the time he tendered his guilty plea, to renew his

motions for new trial based on that showing.

10

proceedings rendered constitutionally ineffective assistance.9

We agree, in part.

2006 plea: violation of an abuse prevention order.10 In

support of his motion for new trial on the 2006 plea, the

defendant submitted an affidavit of his plea counsel in which

counsel does not address whether she advised the defendant of

the immigration consequences of his plea. Counsel's affidavit

is silent as to the performance of her obligation under Padilla;

instead, it asserts that the plea judge "failed to provide the

9

Although the defendant's motion on his 1992 plea also

raised a claim of ineffective assistance based on Padilla, he

does not press that claim on appeal. This, most likely, is

because "the holding in Padilla is to be applied retroactively

to criminal convictions obtained after the effective date of

[the Illegal Immigration Reform and Immigrant Responsibility Act

of 1996], April 1, 1997, the point at which deportation became

'intimately related to the criminal process.'" See Commonwealth

v. Clarke, supra at 45, quoting from Padilla v. Kentucky, supra

at 365.

10

Citing Commonwealth v. Grannum, 457 Mass. 128, 136-137

(2010), the Commonwealth asserts that the 2006 plea is not ripe

for review under Padilla because the immigration consequences

the defendant now faces rest solely on the 1992 plea and the

1997 plea for assault by means of a dangerous weapon (as they

are the offenses cited in the notice to appear for removal

proceedings). However, Grannum involved a claim for relief

based on the statutory provisions of G. L. c. 278, § 29D, which

require a defendant to demonstrate that he faces actual, rather

than hypothetical, immigration consequences as a result of the

plea. See Commonwealth v. Berthold, 441 Mass. 183, 185 (2004).

Under Padilla and Clarke, a defendant seeking relief is not

required to demonstrate actual or imminent immigration

consequences; instead, the test for prejudice examines the

choice the defendant would have made at the time he entered the

plea, had he been properly advised of potential immigration

consequences. See Commonwealth v. Clarke, supra at 47-48.

11

defendant with his alien warnings" -- an issue not raised in the

defendant's motion for new trial and an assertion contradicted

by the docket. Thus, assuming that counsel was required to

advise the defendant of the immigration consequences of his

plea,11 the only evidence that counsel's advice was

constitutionally deficient is an assertion in the defendant's

affidavit that counsel "did not tell [him] that if [he] pleaded

guilty . . . he could be deported." Given "the suspicious

failure to provide pertinent information from [plea counsel,] an

expected and available source," see Commonwealth v. Goodreau,

442 Mass. at 354,12 and that the only evidence that plea counsel

provided constitutionally deficient advice is from the defendant

himself, whose credibility is undermined by self-interest, see

Commonwealth v. Torres, 469 Mass. 398, 403 (2014), we discern no

error of law or abuse of discretion in the judge's conclusion

11

The defendant claims that his conviction for violating an

abuse prevention order made him deportable under 8 U.S.C.

§ 1227(a)(2)(E)(ii) (2000), which states: "Any alien who . . .

is enjoined under a protection order issued by a court and whom

the court determines has engaged in conduct that violates the

portion of a protection order that involves protection against

credible threats of violence, repeated harassment, or bodily

injury to the person or persons for whom the protection order

was issued is deportable."

12

As the defendant does not claim that his request for an

affidavit detailing plea counsel's immigration advice was

rebuffed, we think the motion judge could properly draw a

negative inference from the existing affidavit. See

Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551 (2014).

12

that the motion did not raise a substantial issue warranting an

evidentiary hearing or a new trial.

1997 plea: assault by means of a dangerous weapon. In

support of his motion for new trial regarding the 1997 plea to

assault by means of a dangerous weapon, the defendant submitted

an affidavit of his plea counsel in which counsel stated that he

had no memory of discussing potential immigration consequences

with the defendant, incident to his tender of a guilty plea, and

that he could state with a fair degree of certainty that he did

not.13 The Commonwealth does not dispute the defendant's

contention that, combined with his 1992 conviction of

shoplifting, a crime of moral turpitude, the defendant's 1997

conviction of assault by means of a dangerous weapon, likewise a

crime of moral turpitude, rendered the defendant deportable

under 8 U.S.C. § 1227(a)(2)(A)(ii) (1994 & Supp. II 1996) ("Any

alien . . . convicted of two or more crimes involving moral

13

In detail, counsel's affidavit stated that the defendant

"never indicated that he was a citizen of another country. I

have no memory of discussing the potential for a conviction on

these charges leading to immigration consequences. I do believe

if I had advised him of such, I would have a recollection of

such conversation as I remember him and his case well. Thus I

can state with to [sic] a fair degree of certainty that I did

not advise him that the charges against him were considered

crimes of moral turpitude for immigration purposes, that

conviction of two or more crimes of moral turpitude would make

him deportable, or that in light of his record of convictions as

of 1996, he already have [sic] had at least one conviction that

would be a conviction for a crime of moral turpitude, and

additional convictions for such offenses would render him

subject to deportation."

13

turpitude, not arising out of a single scheme of criminal

misconduct, regardless of whether confined thereof and

regardless of whether the convictions were in a single trial, is

deportable"). Based on this contention, the defendant asserts

that, as plea counsel failed to advise him of the potential

immigration consequences flowing from the 1997 plea, counsel's

advice was constitutionally deficient.

We agree with the defendant's assertion that counsel's

advice was constitutionally deficient.14 The legal authority

provided by the defendant, and the additional authority we have

found, suggests that the crimes at issue, shoplifting15 and

14

As we have also observed, the Commonwealth does not

dispute the defendant's assertion that shoplifting and assault

by means of a dangerous weapon are crimes involving moral

turpitude. However, we make no comment on whether the crimes of

shoplifting and assault by means of a dangerous weapon under

Massachusetts law are in fact, or as applied to the defendant,

crimes involving moral turpitude. See, e.g., Mejia v. Holder,

756 F.3d 64, 68-69 (2014) (indicating that shoplifting under

Massachusetts law may not always qualify as a crime involving

moral turpitude). As "[c]ounsel's performance must be measured

against that of an ordinary fallible lawyer, at the time of the

alleged professional negligence, and not with the advantage of

hindsight," Commonwealth v. Drew, 447 Mass. 635, 641 (2006)

(quotations and citation omitted), we look only to the legal

authority available to plea counsel in 1997. See notes 15 and

16, infra.

15

See, e.g., Mattis v. Immigration & Naturalization Serv.,

774 F.2d 965, 967 (9th Cir. 1985) (indicating shoplifting is a

crime involving moral turpitude); Wong vs. Immigration &

Naturalization Serv., U.S. Ct. App., No. 92-1721, slip op. at 9

n.5 (1st Cir. Dec. 8, 1992) (noting that characterization of

shoplifting as a crime involving moral turpitude, "while not

unanimously endorsed, finds support in the caselaw of [the First

14

assault by means of a dangerous weapon,16 are crimes involving

moral turpitude. Thus, those authorities indicate that by

pleading guilty to assault by means of a dangerous weapon in

Circuit Court of Appeals]"); Farrell-Murray vs. Immigration &

Naturalization Serv., U.S. Ct. App., No. 92-9549, slip op. at 2

(10th Cir. Apr. 28, 1993) (rejecting claim that shoplifting is

not a crime involving moral turpitude, noting that "both the

courts and the [board of immigration appeals] have historically

held that, regardless of the amount stolen or the sentence

imposed, crimes of theft involve moral turpitude"). See also

Robert D. Ahlgren, State Department Implementation of the 1990

Act: Grounds of Exclusion Related to Criminal Activity, in 24th

Annual Immigration and Naturalization Institute 169-170 (1991)

("[A crime involving moral turpitude] is any crime showing an

innate 'moral depravity.' This can include anything from

shoplifting to murder"); Noncitizens and Criminal Offenses:

Protecting Your Noncitizen Client 10 (Mass. Continuing Legal

Educ. 1995) (noting that shoplifting is a crime involving moral

turpitude). Cf. Morasch v. Immigration & Naturalization Serv.,

363 F.2d 30, 31 (9th Cir. 1966) ("[P]etty or grand larceny,

i.e., stealing another's property qualifies [as a crime

involving moral turpitude"]); Matter of P, 4 I. & N. Dec. 252,

252-254 (Acting A.G. 1951) (holding that theft of clothing from

store was a crime involving moral turpitude); Matter of Neely &

Whylie, 11 I. & N. Dec. 864, 864-866 (B.I.A. 1966) (noting that

theft of goods from store was a crime involving moral

turpitude), overruled on other grounds by Matter of Urpi-Sancho,

13 I. & N. Dec. 641, 642 (B.I.A. 1970).

16

See, e.g., Matter of O, 3 I. & N. Dec. 193, 197-198

(B.I.A. 1948) (assault by use of a dangerous weapon is a crime

involving moral turpitude); Matter of J, 4 I. & N. Dec. 512,

514-515 (B.I.A. 1951) (noting that "[a]ssault with a dangerous

or deadly weapon has repeatedly been held to be a crime

involving moral turpitude," and holding that assault and battery

by means of a dangerous weapon under G. L. c. 265, § 15A, is a

crime involving moral turpitude based on definition of dangerous

weapon and evil intent shown by use of dangerous weapon); Matter

of Goodalle, 12 I. & N. Dec. 106, 107 (1967) (assault by use of

a knife is a crime involving moral turpitude). Cf. Shaw v.

Robbins, 338 F. Supp. 756, 758 (S.D. Me. 1972) (indicating that

for purpose of evidentiary ruling, Massachusetts conviction of

assault with a dangerous weapon is a crime involving moral

turpitude).

15

1997, the defendant became "deportable" under 8 U.S.C.

§ 1227(a)(2)(A)(ii). As plea counsel's affidavit indicates that

he provided no advice on the potential immigration consequences

of the plea, his advice was constitutionally deficient under

Padilla.

A showing that plea counsel's advice was constitutionally

deficient does not alone entitle the defendant to relief,

however; the defendant must also demonstrate prejudice. See

Commonwealth v. Clarke, 460 Mass. at 46-47. "In the context of

a guilty plea, in order to satisfy the 'prejudice' requirement,

the defendant has the burden of establishing that 'there is a

reasonable probability that, but for counsel's errors, he would

not have pleaded guilty and would have insisted on going to

trial.'" Id. at 47, quoting from Hill v. Lockhart, 474 U.S. 52,

59 (1985). As a threshold matter, the defendant must assert

that he would not have pleaded guilty, Commonwealth v. Clarke,

supra at 47, and the defendant in the present case has done that

in his affidavit submitted in support of his motion for new

trial. In addition, the defendant must establish that such a

choice would have been rational in the circumstances, by

"showing that (1) he had an 'available, substantial ground of

defence,' Commonwealth v. Saferian, [366 Mass. 89, 96 (1974)],

that would have been pursued if he had been correctly advised of

the dire immigration consequences attendant to accepting the

16

plea bargain; (2) there is a reasonable probability that a

different plea bargain (absent such consequences) could have

been negotiated at the time[footnote omitted]; or (3) the

presence of 'special circumstances' that support the conclusion

that he placed, or would have placed, particular emphasis on

immigration consequences in deciding whether to plead guilty."

Commonwealth v. Clarke, supra at 47-48, quoting from Hill v.

Lockhart, supra at 60.

The defendant in the present case does not assert that he

can satisfy either of the first two methods to show prejudice,

but contends that his submissions in support of his motion

sufficed to raise a substantial issue concerning the third.

As we have observed, see note 6, supra, though Dr. Condie's

report did not offer an opinion concerning the defendant's

mental competence to enter a guilty plea, it made several

observations concerning the difficulties he would face, were he

to attempt to live independently in his native Colombia. As we

noted earlier, the defendant has not lived in Colombia since he

moved to the United States in 1979, at age twelve, and he is

largely dependent on his family members in the United States for

many of the basic requirements of daily life. Though he has

maintained menial employment at times in the past, he depends to

a significant extent on governmental benefits to meet his

financial needs. In addition to the subsidiary factual

17

observations we recounted earlier, we quote Dr. Condie's

"Opinion and Recommendations" in full in the margin.17

17

"In my clinical opinion, it is likely that Mr. Cano would

have extreme difficulty taking care of himself and remaining

safe were he deported to [Colombia]. He would be vulnerable to

victimization because of limited cognitive abilities and limited

adaptive skills. He would not have the mental sophistication

needed to determine when he was being taken advantage of.

"Mr. Cano speaks Spanish but his primarily [sic] language

has been English since high school. He is functionally

illiterate and he would have difficulty reading correspondence,

books, and other materials needed to adapt to a different

culture. He relies heavily upon his parents and siblings for

help with finances, finding a place to live, and finding

employment. It is unlikely he would be able to complete these

tasks independently. He does not have sufficient work skills to

keep a job long term.

"Mr. Cano can cook and keep a clean apartment, but he does

not have a sophisticated grasp of cooking and nutrition. With

respect to interpersonal relationships, it is likely he would be

vulnerable to a heavy sense of loss were he to lose contact with

his family members. He does not have sophisticated

communication skills to use technology such as e-mail, Skype, or

FaceTime to contact family members; nor would he have the means

or travel skills to meet them somewhere for a visit. Contact

would be limited to the telephone. It is unlikely he would be

able to protect himself from crime victimization or involvement

because of his difficulty determining who is a reasonable

candidate for his friendship and trust. He has had difficulty

forming and keeping adult friendships and his relationships with

women have been of short duration. He has not demonstrated

sufficient skills to support or raise his children. He makes

poor decisions in his social life and his choice of friendships.

"Mr. Cano is not adept at using community resources. Any

arrangements to access community resources have been

accomplished on his behalf by his parents. He uses his leisure

time to perform chores for people in the neighborhood, but he

also is likely to wander the streets. He has limited skills to

discern when he faces interpersonal and community safety issues.

In my clinical opinion, deportation of Mr. Cano would raise

significant safety concerns for him."

18

In light of the extreme difficulties Dr. Condie suggests

the defendant would face were he to be returned to Colombia, we

agree with the defendant that he has raised a substantial issue

concerning the presence of "special circumstances" that would

have made it rational for him to reject a guilty plea and

proceed to trial on the charge of assault by means of a

dangerous weapon. We accordingly remand the matter to the

District Court for an evidentiary hearing on the question.

Conclusion. We vacate so much of the order dated April 16,

2013, that denies the defendant's motion for new trial on docket

no. 9611CR7474A (assault by means of a dangerous weapon), and we

remand that matter to the District Court for further proceedings

consistent with this opinion. We affirm so much of the order

dated April 16, 2013, that denies the defendant's motion for new

trial on docket no. 9611CR7474B (threatening to commit a crime).

We affirm the orders dated April 16, 2013, denying the motions

for new trial on docket nos. 8811CR0131 (shoplifting),

9211CR4304 (shoplifting, third or subsequent offense), and

0611CR3665 (violation of an abuse prevention order).

So ordered.