49 Mass. App. Ct. 910 | Mass. App. Ct. | 2000
When she engaged in a colloquy with the defendant as he tendered his guilty plea, the Superior Court judge asked: “Do you understand that if you are not a citizen of the United States, a guilty finding on this indictment [distribution of cocaine, G. L. c. 94C, § 32A] could result in a change in your status in this country? Do you understand that?” This was a considerably foreshortened version of G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254, which requires a trial judge, before accepting a guilty plea, to advise a defendant of the following:
“If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.”
Two years after tendering his plea, the defendant, who has been deported and is living in Italy, moved to withdraw his plea of guilty and for a new trial; this on the ground that the judge had advised him inadequately that he might be deported, not gain admission, or be denied naturalization. The motion was denied after hearing, and the defendant has appealed.
There is a strong suggestion in Commonwealth v. Pryce, 429 Mass. 556, 559 (1999), that the remedy afforded by G. L. c. 278, § 29D, to vacate the
There have been a fair number of appeals based on claims of flaws in the advice that G. L. c. 278, § 29D, requires judges to give to a defendant tendering a plea of guilty. See, e.g., Commonwealth v. Lamrini, 27 Mass. App. Ct. 662, 666-667 (1989); Commonwealth v. Soto, 431 Mass. 340 (2000). As the Legislature has set out and placed in quotation marks the exact text of what judges should say on such occasions, and it is only one sentence, the proper practice is to give the warning as the Legislature has written it. Id. at 342.
Denial of motion to withdraw plea and for a new trial affirmed.