When Old Convictions Meet New Law: The Appeals Court Revisits Immigration Advice and the Right to Appeal
Introduction
In October 2025, the Massachusetts Appeals Court issued an opinion that cuts to the heart of modern criminal practice: what happens when a lawyer’s advice, given decades ago, is tested under today’s constitutional standards.
In Commonwealth v. Ricardo Lopez (24-P-372), the court considered a Guatemalan defendant’s motion for a new trial based on alleged ineffective assistance of counsel. The claims were twofold — that his trial attorney failed to warn him of the immigration consequences of a conviction and that he failed to advise him about the right to appeal.
The Appeals Court rejected the first argument but agreed the second deserved a hearing. The decision illustrates how Massachusetts courts are refining the limits of Padilla v. Kentucky (2010) and confirming that the duty to protect a client’s appellate rights endures, even decades after trial11-069-2511-069-25.
Case Background
In 1999, Ricardo Lopez, an undocumented immigrant from Guatemala, was charged in the Lawrence District Court with assault and battery, breaking and entering in the nighttime with intent to commit a felony, and malicious destruction of property over $25011-069-25.
After a bench trial in 2000, Lopez was acquitted of assault and battery but convicted of breaking and entering and of the lesser-included offense of malicious destruction of property under $250. He received six months of probation and no jail time11-069-25.
At the time, Lopez’s case appeared finished. But decades later, when his mother became a naturalized U.S. citizen, Lopez discovered that his old conviction had lasting consequences: it rendered him ineligible for permanent residency because breaking and entering with intent to commit a felony is considered a crime of moral turpitude under federal immigration law11-069-25.
In 2021, Lopez filed a motion for a new trial under Mass. R. Crim. P. 30, claiming that his attorney had never warned him of those immigration risks and never advised him of his right to appeal. The District Court denied both the motion and a subsequent motion for reconsideration. Lopez appealed.
The Legal Issues
The Appeals Court framed two distinct questions:
Did trial counsel provide ineffective assistance by failing to warn the defendant of the immigration consequences of a conviction or to negotiate an “immigration-safe” plea?
Did trial counsel fail to discuss or file a notice of appeal, thereby depriving the defendant of appellate review?
The Court’s Ruling
Justice Englander, writing for the panel, affirmed in part and vacated in part.
Immigration advice claim – denied. The court held that Lopez had not shown prejudice under the Saferian test because he failed to establish a reasonable probability that the prosecutor would have offered, the judge would have accepted, or he would have entered an “immigration-safe” plea that avoided the consequences he later faced11-069-2511-069-25.
Right-to-appeal claim – remanded. The panel ruled that the record was insufficient to decide whether counsel’s failure to discuss or file an appeal constituted ineffective assistance. Because Lopez alleged that his lawyer “never even brought [the possibility of appeal] up,” and the attorney’s emails were ambiguous, the matter required an evidentiary hearing in the District Court11-069-25.
Immigration Consequences and Ineffective Assistance
The Saferian Framework
Under Commonwealth v. Saferian (1974), a defendant claiming ineffective assistance must prove that (1) counsel’s performance fell “measurably below that which might be expected from an ordinary fallible lawyer,” and (2) the deficiency “likely deprived the defendant of an otherwise available, substantial ground of defense.”
Here, Lopez argued that his lawyer failed to warn him that conviction of a crime of moral turpitude would make him permanently inadmissible and ineligible for future immigration relief.
The Appeals Court’s Reasoning
The panel concluded that Marinho (2013) — a Supreme Judicial Court case involving nearly identical facts — controlled the outcome. In Marinho, the SJC held that even when counsel failed to advise an undocumented client about immigration risks, the defendant could not show prejudice without proof that a plea deal avoiding those consequences was realistically available11-069-25.
Likewise, the court reasoned, Lopez presented no evidence that prosecutors would have accepted a plea to lesser charges or that a judge would have approved one. Moreover, because Lopez was already undocumented and therefore “deportable per se,” the conviction did not make his situation materially worse.
The court acknowledged that Lopez’s conviction blocked a specific path to residency — an “unlawful-presence waiver” for children of U.S. citizens — but emphasized that expecting counsel in 2000 to anticipate that future consequence was “far-fetched” given the standards of the time11-069-25.
The Dissent
Justice Smyth dissented from this portion, arguing that counsel’s performance was indeed deficient. He reasoned that Massachusetts law — including Padilla v. Kentucky and G. L. c. 278, § 29D — already required defense lawyers to advise non-citizens about immigration consequences, including inadmissibility and loss of future immigration relief11-069-25. Smyth would have remanded for an evidentiary hearing on both the performance and prejudice prongs.
The Right to Appeal: A Separate Concern
While the court found no reversible error in counsel’s immigration advice, it took a different view of the alleged failure to discuss or file an appeal.
Lopez stated under oath that his lawyer never mentioned the possibility of appeal and never filed a notice. The attorney’s emails indicated that he “questioned an appeal in this case” but did not clarify whether he informed the client.
Citing Roe v. Flores-Ortega (2000) and Commonwealth v. Trussell (2007), the Appeals Court held that if counsel never discussed appellate rights with the client, that may constitute ineffective assistance. In such cases, defendants are not required to identify specific appellate issues — the loss of review itself is the prejudice.
Accordingly, the panel remanded the case for a limited evidentiary hearing to determine:
Whether counsel failed to advise Lopez of his appellate rights; and
Whether Lopez would have pursued an appeal if properly informed.
The court emphasized that granting a new appeal decades later would pose practical challenges — including missing transcripts — but fairness required at least the opportunity to prove the claim11-069-25.
Broader Legal Significance
1. Reinforcing the Limits of Padilla
Since the U.S. Supreme Court’s decision in Padilla v. Kentucky (2010), lawyers have been constitutionally obligated to warn non-citizen clients about the immigration risks of a plea. But Lopez shows that Massachusetts courts remain cautious about extending Padilla to pre-2010 convictions or to speculative future consequences.
The panel stressed that defense lawyers in 2000 could not be held to the same professional expectations that evolved after Padilla and Clarke (2011). Without concrete evidence of a plea offer or immigration-safe alternative, ineffective-assistance claims will fail.
2. The Continuing Duty to Protect Appellate Rights
By remanding the appeal issue, the court reaffirmed a separate and enduring principle: every defendant has a right to be informed of, and assisted in exercising, the right to appeal.
For practitioners, Lopez is a reminder that communication about appellate rights is mandatory, even when a trial seems uneventful or the sentence light. A brief conversation and a one-page notice can preserve rights that might otherwise be lost forever.
3. Challenges in Post-Conviction Litigation
The decision also highlights a recurring problem in post-conviction work: reconstructing events long after the fact. Here, counsel had refused to provide an affidavit or case file to successor counsel, contrary to professional-conduct rules. That refusal limited the evidentiary record and complicated the defendant’s burden.
For defense attorneys, this underscores the ethical duty to maintain and release files when former clients challenge prior representation.
Lessons for Defense Lawyers
Document immigration advice. Even when the consequences seem uncertain, record what was discussed. A brief note in the file can prevent years of litigation.
Ask about citizenship early. Determine whether the client is a U.S. citizen or permanent resident, and tailor advice accordingly.
Stay current. Immigration law changes quickly. Where necessary, consult or refer to an immigration specialist.
Discuss appeals in every case. Whether the trial is by jury or judge, always explain the right to appeal and confirm the client’s decision in writing.
Preserve the record. Maintain case files for at least the period required by Mass. R. Prof. C. 1.15A and respond promptly to successor-counsel requests.
Implications for Defendants
For non-citizens, Lopez illustrates the long reach of a criminal conviction. Even a minor offense or short probationary sentence can affect immigration status decades later.
If you were convicted years ago and have since discovered that your immigration status, licensing, or employment prospects are affected, you may be eligible to file a motion for a new trial or to reopen your case based on ineffective assistance of counsel.
However, the burden is high. You must show both that your lawyer’s performance was constitutionally deficient and that the error likely changed the outcome. Evidence such as plea discussions, immigration consultations, or contemporaneous notes can be crucial.
For defendants who never filed an appeal, Massachusetts courts recognize that losing the opportunity to appeal can itself be a form of prejudice — but the facts must be proven at a hearing.
Key Takeaways
The Appeals Court in Commonwealth v. Lopez reaffirmed that ineffective-assistance claims based on immigration advice must show actual prejudice, not just theoretical harm.
A conviction’s immigration consequences, standing alone, do not establish prejudice unless a viable plea alternative was available.
Failure to advise a client about the right to appeal can constitute ineffective assistance and warrants an evidentiary hearing.
Defense counsel’s ethical duty includes cooperating with successor counsel and preserving client files.
The case continues Massachusetts’s careful balancing between fairness to defendants and respect for finality in old convictions.
Conclusion
Commonwealth v. Ricardo Lopez reminds lawyers and defendants alike that the passage of time does not erase the constitutional duties owed in criminal defense. While the Appeals Court declined to reopen the case on immigration grounds, it ensured that the fundamental right to appeal receives full protection.
For practitioners, the message is clear: communicate, document, and preserve. For clients, it is a reminder that old cases can still be revisited when new law sheds light on past omissions.
About Benzaken, Sheehan & Wood, LLP
Benzaken, Sheehan & Wood, LLP is a Brockton-based criminal defense firm representing clients across Massachusetts in serious state and federal matters, including post-conviction relief, homicide, firearms, and immigration-sensitive offenses.
Our attorneys have extensive experience with motions for new trial, appeals, and ineffective-assistance claims before the Appeals Court and Supreme Judicial Court.
If you or a loved one face immigration or post-conviction issues arising from a past case, contact our office for a confidential consultation. We combine courtroom experience with careful, practical guidance — helping clients navigate the intersection of criminal and immigration law with clarity and care.