by Sam Rutherford

The Supreme Judicial Court of Massachusetts held that a defendant did not knowingly and voluntarily waive his right to counsel under the Massachusetts Constitution when he decided to represent himself at arraignment and during a change of plea hearing but nonetheless upheld his guilty plea because the invalid waiver of counsel did not result in a miscarriage of justice. In doing so, the Court confirmed that Article 12 of the state Constitution requires the trial court to conduct an inquiry to determine whether defendant’s waiver was knowing and voluntary at any stage of a case, including arraignment or plea hearing, not only on the eve of trial.

Background

Nelson Barros was born in Angola in 1973. He moved with his family to Portugal in 1977 to escape the civil war that began a few years earlier in Angola. In 2015, Barros moved to the U.S. to live with his wife and became a lawful permanent resident. In 2017, Barros was arrested on one count of assault and battery for punching his wife in the face.

Barros was arraigned the next day, during which he indicated that he wanted to represent himself in response to the trial court’s questions whether he required appointed counsel. The court did not conduct a colloquy with Barros to ensure that he understood the risks of self-representation but simply had him sign a form acknowledging that he has waived his right to counsel. Barros, without counsel, then negotiated a plea bargain with the Commonwealth’s attorney for one year of probation in exchange for Barros’ admission to sufficient facts to warrant finding him guilty. The trial court again confirmed that Barros understood he had a right to counsel and that he wanted to proceed without one.

Barros completed his probation, and the underlying charge was dismissed. However, in 2022, he was detained by Immigration and Customs Enforcement officers upon his return to the U.S. from a trip to visit his mother in Portugal. The Department of Homeland Security informed him that he was removable pursuant to Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i), due to his admission to sufficient facts to find him guilty of assault and battery on a household member.

While awaiting a hearing before the Immigration Court, Barros retained counsel and moved to withdraw his guilty plea, arguing that the plea was not knowing and voluntary because he did not know it could result in his deportation. The trial court denied the motion because Barros had been advised on the record during his plea hearing that, by pleading guilty, he could be subject to removal proceedings. The attorney, however, did not argue that Barros’ waiver of counsel was invalid.

Barros retained another lawyer who filed a second motion to withdraw his guilty plea, this time arguing that Barros did not validly waive his right to counsel before his admission to sufficient facts because the judge failed to conduct a colloquy to ensure Barros understood the consequences of forgoing representation by counsel. That motion was also denied, and the Supreme Judicial Court granted direct appellate review.

Analysis

The questions before the Court were whether Barros validly waived his right to counsel under the Massachusetts Constitution and, if not, whether he was entitled to withdraw his admission to sufficient facts, i.e., guilty plea.

The right to counsel in criminal prosecutions in a fundamental right under both Article 12 of to the Massachusetts Declaration of Rights and the Sixth Amendment to the U.S. Constitution. Lavallee v. Justices in the Hampden Superior Court, 812 N.E.2d 895 (Mass. 2004). This right “embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.” Johnson v. Zerbst, 304 U.S. 458 (1938). But a defendant also has the constitutional right to represent himself and may therefore voluntarily waive the right to counsel. Commonwealth v. Means, 907 N.E.2d 646 (Mass. 2009) (citing Faretta v. California, 422 U.S. 806 (1975)).

However, to balance and protect both of these fundamental rights, the Supreme Judicial Court has long held that, under Article 12, “a defendant’s waiver must give us confidence ‘that the defendant was adequately aware of (1) the seriousness of the charges, (2) the magnitude of the undertaking, (3) the availability of advisory counsel, and (4) the disadvantages of self-representation.’” Quoting Commonwealth v. Martin, 683 N.E.2d 280 (Mass. 1997) (internal quotation marks, alterations, and citations omitted). While a trial court is not required to ask a “prescribed” set of questions or consider any “particular piece of information” when accepting a waiver of counsel, Martin, the court must conduct an appropriate inquiry. Means. The nature and extent of the court’s inquiry should be based on the particular facts and circumstances of each case, including the defendant’s background and experience. Commonwealth v. Barnes, 504 N.E.2d 624 (Mass. 1987).

Although the Supreme Judicial Court’s prior cases addressing the waiver of counsel involved situations where the defendant decided to represent himself on the eve of trial, the Court clarified that Article 12 “always requires this inquiry to ensure that a defendant’s waiver of counsel is knowing and intelligent, at any stage of a case.” This is so because a defendant is entitled to the effective representation of counsel not just during the trial itself but also during pretrial proceedings. For example, a defendant is entitled to competent assistance in negotiating a plea agreement with the Commonwealth. See Missouri v. Frye, 566 U.S. 134 (2012); Commonwealth v. Mahar, 809 N.E.2d 989 (Mass. 2004). And whether the defendant decides to plea or go to trial, defense counsel must inquire into and inform the defendant about potential immigration consequences with respect to a conviction, plea, or admission of sufficient facts. Commonwealth v. Marinho, 981 N.E.2d 648 (Mass. 2013).

Thus, because a “waiver of the right to counsel relinquishes these benefits,” trial courts may not forego ensuring that a waiver of counsel is knowing and voluntary just because the defendant decides to plead guilty, the Court explained. Instead, courts must perform the four-part test set forth in Martin whenever a defendant asserts the right to self-representation, and judges “should therefore inquire into the defendant’s understanding in each of these respects.” Trial courts must also inform defendants that waiving the right to counsel “means forgoing counsel’s advice concerning immigration consequences.” Although the extent of the trial court’s inquiry will vary depending on the particular case and defendant, the Court declared that the inquiry is mandatory under Article 12 of the Massachusetts Declaration of Rights and must be conducted on the record.

The next issue was whether this rule is “new” and therefore not applicable to Barros’ case. Massachusetts, like many states, follows the holding in Teague v. Lane, 489 U.S. 288 (2013), which states that “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced,” while “old rules apply both on direct and collateral review.” Commonwealth v. Sylvain, 995 N.E.2d 760 (Mass. 2013). A rule is new only if the result is “not dictated by precedent.” Id.

The Court determined that the rule announced in Barros’ case is not “new” because Massachusetts courts had long held that judges must “ensure that a defendant understand the disadvantages of self-representation before waiving the right to counsel” even at the guilty plea stage of a case, i.e., the rule is dictated by precedent. Commonwealth v. Najjar, 136 N.E.3d 1246 (Mass. App. Ct. 2019).

Having resolved when and how a trial court must address a defendant’s waiver of the right to counsel, the next issue was whether the trial court in Barros’ case had properly determined that he had knowingly and voluntarily waived his right to counsel before pleading guilty. The Court concluded that he had not because “the judge conducted no inquiry into the defendant’s understanding of the responsibilities of representing himself or the disadvantages of forgoing an attorney. The judge did not inquire of the defendant regarding what he understood about the charge against him; what self-representation would entail; or the advantages of the assistance of counsel, including advice regarding the immigration consequences of a disposition.” Instead, the trial court simply had Barros sign a form waiving his right to counsel, which is insufficient under Article 12.

Normally, when the record reveals that a defendant’s waiver of counsel was not knowing and voluntary, “vacatur of the plea will be required for structural error.” Means. In this case, however, Barros waived the claim by not raising it in his first motion to withdraw his guilty plea, and therefore he bore the burden of establishing a substantial risk of a miscarriage of justice in order to obtain relief, the Court explained. See Mass. R. Crim. P. 30 (c)(2); see also Commonwealth v. Francis, 147 N.E.3d 491 (Mass. 2020).

The Court concluded that Barros failed to make such a showing because nothing in the record established that he would not have waived his right to counsel had he received proper warnings about the risks of doing so, and he also did not show that he would have rejected the Commonwealth’s plea offer had he been represented. The Court stated: “[T]hrough his negotiations with the Commonwealth, [Barros] was able to obtain an offer of a continuance without a finding with one year of probation. While [he] now assertedly regrets the potential immigration consequences of his plea, the continuance without a finding was in other respects a beneficial disposition that allowed him to avoid a conviction, and he has not presented anything to suggest that he could have obtained a more favorable result with the benefit of representation by counsel.”

Conclusion

Accordingly, although the Court agreed that Barros was not properly advised concerning the waiver of his right to counsel, it nonetheless affirmed the denial of his motion to withdraw his admission to sufficient facts. See: Commonwealth v. Barros, 233 N.E.3d 1083 (Mass. 2024).

Writer’s note: Although the Supreme Judicial Court denied Barros relief even after acknowledging that he was not only the victim of an inadequate inquiry concerning his right to counsel by the trial court but also bad lawyering because the attorney he initially retained to file a motion to withdraw his plea failed to argue the waiver issue and therefore forfeited it, the Court did note that Barros was not deported because a “Federal Immigration Court judge terminated the removal proceedings against him, after concluding that the crime of assault and battery on a household member does not categorically qualify as a crime of domestic violence under the governing Federal statute because it can be committed via an offensive touching.” In other words, Barros got very lucky despite the violation of his rights and bad lawyering.   

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