994 N.E.2d 382
Mass. App. Ct.2013Background
- In 2005 the defendant admitted to sufficient facts on charges including assault; the District Court accepted the change of pleas, continued the cases without a finding, and imposed 11 months probation.
- In 2011 the defendant was denied reentry to the U.S. after a trip to Cape Verde because of the 2005 disposition, prompting a motion to withdraw the pleas.
- The defendant argued the plea judge failed to give the G. L. c. 278, § 29D immigration warning required after the 2004 amendment (which specifically mentions admissions to sufficient facts).
- The District Court judge who denied the motion was not the plea judge and held a nonevidentiary hearing before denying relief; the Commonwealth bore the burden to prove the required warning was given.
- The record included a docket entry stating an alien warning was given and a green sheet with the plea judge’s contemporaneous certification, but no plea transcript and the green sheet’s wording omitted the specific statutory language about admissions to sufficient facts.
- The Appeals Court reversed, holding the Commonwealth did not adequately establish that the statute’s mandatory admonition (as amended) was actually given.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Commonwealth proved the judge gave the § 29D immigration advisement required by statute | Commonwealth: docket entry and green sheet certification show warning was given | Defendant: no evidence the statutory wording (including reference to admissions to sufficient facts) was actually read; he does not recall the warning | Reversed: Commonwealth did not adequately establish the required statutory advisement was given |
| Whether the statutory presumption of nonadvisement was triggered | Commonwealth: records (docket + green sheet) suffice to defeat the presumption | Defendant: presumption applies absent an accurate contemporaneous record of the required wording | Court: presumption not triggered by mere presence of entries, but Commonwealth still must demonstrate the actual content of the warning |
| Whether the plea judge’s green sheet certification is sufficient proof of statutory compliance | Commonwealth: certification is contemporaneous evidence and should be credited | Defendant: certification lacks the mandatory statutory language; without transcript or affidavit it is insufficient | Certification alone insufficient where wording does not match statute and no supporting affidavit or transcript exists |
| Whether collateral presumption of regularity saves the Commonwealth’s proof gap | Commonwealth relied on presumption of regularity for plea-taking | Defendant: that presumption does not apply to § 29D claims | Held: presumption of regularity does not apply; Commonwealth must meet § 29D burden |
Key Cases Cited
- Commonwealth v. Hilaire, 437 Mass. 809 (discusses requirement to read § 29D warning preferably verbatim)
- Commonwealth v. Mahadeo, 397 Mass. 314 (Commonwealth bears burden to provide affirmative record that advisement was given)
- Commonwealth v. Grannum, 457 Mass. 128 (burden persists regardless of lapse of time; presumption of regularity does not apply to § 29D challenges)
- Commonwealth v. Jones, 417 Mass. 661 (timing of burden allocation in pleas and collateral attack context)
- Commonwealth v. Rzepphiewski, 431 Mass. 48 (discusses triggering of statutory presumption and need for record)
- Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928 (plea judge’s affidavit of customary practice can be probative)
- Commonwealth v. Diaz, 75 Mass. App. Ct. 347 (plea judge’s statement of customary practice can be necessary when record is depleted)
- Commonwealth v. Villalobos, 437 Mass. 797 (prior § 29D wording inadequate; amendment required warning about admissions to sufficient facts)
- Commonwealth v. Haskell, 76 Mass. App. Ct. 284 (describes green sheet use in tendering pleas)