35 N.E.3d 409
Mass. App. Ct.2015Background
- Defendant pleaded to sufficient facts for possession of a Class B substance in 2006; disposition was a continuance without a finding that was later revoked after probation violation, resulting in conviction.
- Years later defendant learned federal immigration authorities would deport him based on that conviction and moved to vacate his plea, arguing counsel failed to advise him of immigration consequences and later amended to challenge procedural defects in the court's "green sheet."
- At a nonevidentiary hearing the plea judge (who also heard the motion) noticed missing/unchecked items on the green sheet and docket (defendant and counsel did not sign the portion indicating acceptance of the judge’s disposition; judge signed in counsel’s line and did not check certain disposition boxes).
- The plea transcript was unavailable (destroyed under retention policy); the judge stated, sua sponte, that his uniform practice is to review the green sheet and give immigration warnings at pleas.
- The judge granted the motion to withdraw the plea based on the green-sheet/docket irregularities but did not reach the ineffective-assistance (immigration-advice) claim; the Appeals Court vacated the grant insofar as it rested on green-sheet defects and remanded for consideration of the ineffective-assistance claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether green-sheet/docket defects required vacatur of plea | Commonwealth: plea presumed regular; missing checks/signatures are not dispositive | Tokarev: missing signature/checks show he did not accept judge's disposition and plea defective | Vacated trial judge's allowance insofar as based on green-sheet defects; defendant failed to rebut presumption of regularity |
| Burden of proof when plea record is unavailable | Commonwealth: where record lost through no fault of Commonwealth, defendant bears burden to rebut validity | Tokarev: argued irregular record undermined plea validity | Court: defendant bears burden; must present credible evidence to overcome presumption; here he did not (no affidavits asserting nonacceptance) |
| Whether signature/checkboxes are required to show acceptance | Commonwealth: no rule requires signature/checkbox; noncompliance alone insufficient | Tokarev: absence of checks/signature proves nonacceptance | Held: absence of signature/marks not dispositive; evidence was equivocal and insufficient to overturn plea |
| Need to reach ineffective-assistance (failure to advise re: immigration) | Commonwealth: not decided below | Tokarev: claimed counsel failed to advise on immigration consequences | Appeals Court remanded for consideration of ineffective-assistance claim (trial judge did not decide it) |
Key Cases Cited
- Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928 (1999) (plea judge's statement of usual practice may be probative when record is depleted)
- Commonwealth v. Diaz, 75 Mass. App. Ct. 347 (2009) (judge's customary practice can be necessary and probative when transcript is missing)
- Commonwealth v. Grannum, 457 Mass. 128 (2010) (defendant bears burden to rebut presumption of regularity when plea record is unavailable)
- Commonwealth v. Lopez, 426 Mass. 657 (1998) (defendant must present sufficient credible evidence to rebut presumption that prior conviction was valid)
- Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572 (2001) (noncompliance with rule does not automatically render plea involuntary as a matter of law)
- Commonwealth v. Cortez, 86 Mass. App. Ct. 789 (2014) (discussing retention/destruction of plea recordings)