Appeals court weighs Padilla, missed appeals and evidentiary remedy in Lopez conviction

The Massachusetts Appeals Court heard argument Jan. 6 in Commonwealth v. Lopez over whether trial counsel’s advice about immigration consequences and the failure to file a timely notice of appeal deprived the defendant of effective assistance of counsel.

Why it matters: The case asks whether Padilla‑style immigration advice must be recognized retrospectively in a decades‑old case, whether the absence of a preserved trial record requires an evidentiary reconstruction, and what remedy — a remand for an evidentiary hearing, reinstatement of appeal rights, or relief on the merits — is appropriate when a criminal conviction blocks an undocumented defendant’s ability to seek immigration relief decades later.

Factual and procedural posture

Rachel Chana, appellate counsel for Andrew Lopez, told the court that trial counsel’s advice in 1999 was constitutionally deficient because counsel mischaracterized which charges carried certain immigration consequences and failed to protect Lopez’s ability to preserve appellate claims. Chana argued Padilla and related precedent required accurate, non‑probabilistic advisals about “clear and certain” immigration consequences and that Lopez was prejudiced because he lost an opportunity to negotiate pleas that would have reduced immigration risk. Chana also argued trial counsel failed to file a notice of appeal, and that the lack of a preserved trial record required an evidentiary hearing under Commonwealth v. Harris to reconstruct the record so Lopez could pursue appellate claims or obtain a new trial.

The Commonwealth, represented at argument by Kristen Jane, told the panel the court should not automatically grant relief and emphasized the late timing: Lopez’s collateral motion was filed roughly two decades after conviction, the original trial record cannot be located, and the Commonwealth urged an evidentiary remand if the court found deficient performance. The Commonwealth disputed that the facts fit the precedents Chana cited and emphasized that any finding of deficient performance should be accompanied by proof of prejudice — a reasonable probability the prosecution would have made a plea offer, the defendant would have accepted it, and the court would have approved it.

Panel questions and legal issues

Judges pressed both sides on several difficult lines of law: whether Padilla’s requirements apply retroactively to the period around 1999; how to evaluate prejudice where plea negotiations were not documented in the existing record; whether a failure to file a notice of appeal is per se ineffective assistance or whether a defendant must show a colorable appellate issue; and whether Harris remand procedures permit reconstruction of a long‑lost trial record decades after conviction. The panel also discussed the practical consequences Lopez disclosed — he said he was unable to adjust status and has been subject to immigration vulnerability because of the convictions — and asked how that real‑world harm should shape a remedy.

Outcome at argument

No decision was announced from the bench. The Commonwealth acknowledged the complexity and the potential need for an evidentiary hearing if the court were inclined to find deficient performance; appellant urged the court to find prejudice and grant relief. The Appeals Court took the arguments under advisement.