Lead Opinion
The defendant appeals from an order of a judge of the District Court denying his “motion to withdraw [his] admission to sufficient facts” to charges of receiving stolen property (one hundred dollars or less) and certain motor vehicle offenses in 1987.
1. Facts and procedural background. In 1986, the defendant was charged in the District Court with receiving stolen property worth one hundred dollars or less, see G. L. c. 266, § 60; operating a motor vehicle negligently so as to endanger, see
In 2006, the defendant filed another pro se motion to withdraw his 1987 admission to sufficient facts, based on the alleged failure to provide immigration warnings. This motion was denied, and the defendant timely filed a notice of appeal. In 2007, the defendant, now represented by counsel, moved in the District
2. Discussion. The defendant argues that, because there are no records demonstrating that he received immigration warnings when he admitted to sufficient facts, he is entitled to a presumption that the warnings were not provided. In addition, he contends that he has met his burden of showing that “his plea and conviction may have one of the enumerated [immigration] consequences” by establishing that his 1987 conviction of receiving stolen property provides a statutory basis for his deportation. G. L. c. 278, § 29D.
The Commonwealth contends that where records are unavailable because of the passage of time, a presumption of regularity should apply to the plea proceedings and the defendant should
a. Presumption that warnings were not given. The statute in effect at the time of the defendant’s admission provided that “[ajbsent a record that the [c]ourt provided the [immigration] advisement . . . the defendant shall be presumed not to have received the required advisement.” G. L. c. 278, § 29D, inserted by St. 1978, c. 383.
The Commonwealth argues that we should modify this holding based on our subsequent decision in Commonwealth v. Lopez, 426 Mass. 657 (1998). In that case, we considered how the burden of proof should be allocated when a defendant challenges the voluntariness of a guilty plea pursuant to Mass. R. Crim. R 30 (b), as appearing in 435 Mass. 1501 (2001), many years after it was entered. Ordinarily, the Commonwealth bears the burden of establishing that a challenged plea was “intelligently and voluntarily made.” Commonwealth v. Furr, 454 Mass. 101, 107 (2009). However, when a defendant challenges a guilty plea after waiting many years, the tape recording, transcript, and other records of the plea are often unavailable through no fault of the Commonwealth. See Commonwealth v. Lopez, supra at 661. Records may be unavailable because they have been disposed of pursuant to court rules authorizing the destruction of old records, see S.J.C. Rule 1:12, as appearing in 382 Mass. 717 (1981), and reconstruction may be impossible because of the death, retirement, unavailability, or lack of recollection of
To date, we have reserved judgment whether this presumption of regularity that applies to collateral challenges to guilty pleas under rule 30 (b) applies also to challenges brought pursuant to G. L. c. 278, § 29D, based on the failure to provide immigration warnings. See Commonwealth v. Rzepphiewski, 431 Mass. 48, 52 n.7 (2000); Commonwealth v. Pryce, 429 Mass. 556, 559 (1999). We conclude today that it does not.
Our holding in Commonwealth v. Lopez, supra at 661-662, 664-665, applied a presumption of regularity only to motions to vacate guilty pleas brought under rule 30 (b). Motions to withdraw a guilty plea for failure to provide immigration warnings are “different in kind” and are governed by different standards. See Commonwealth v. Mahadeo, 397 Mass. 314, 318 n.5 (1986). The presumption of regularity applicable to motions under rule 30 (b) is inconsistent with the language of G. L. c. 278, § 29D. That statute provides that, if the court fails to give immigration warnings and the defendant “at any time shows that his plea and conviction may have one of the enumerated consequences, the [cjourt . . . shall vacate the judgment, and permit the defendant to withdraw the plea” (emphasis added). G. L. c. 278, § 29D. The statute is equally explicit that, absent a record that the warnings were provided, “the defendant shall be presumed not to have received the required advisement.” Id.
Thus, the “explicit language of the statute unambiguously manifests a legislative intent to place on the Commonwealth the burden of proving that the requirements of G. L. c. 278, § 29D, have been satisfied, irrespective of the amount of time that may have passed between a conviction and a defendant’s motion to withdraw his plea or his admission to sufficient facts.” Commonwealth v. Jones, supra at 664. Even though, given this statutory language, there is the possibility of prejudice to the Commonwealth similar to that which led us to adopt the pre
In this case, there is nothing in the record indicating that the defendant received immigration warnings at the time of his admission. Nor has the Commonwealth “reconstructed the record” with, for example, evidence from the judge who took the admission or other individuals present when the admission was accepted. See Commonwealth v. Rzepphiewski, supra at 53-54. See also Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 351-352 (2009) (guidance for reconstructing record of plea proceedings to establish that immigration warnings were given). Therefore, the defendant is entitled to a presumption that he did not receive the immigration warnings, and the Commonwealth has not satisfied its burden to establish that the presumption has been overcome.
b. Enumerated immigration consequences. In order to be entitled to withdraw his admission due to the absence of immigration warnings, the defendant must show that “his plea and conviction may have or has had one of the enumerated consequences” set forth in the immigration warnings: deportation, exclusion from admission to the United States, or denial of naturalization. See G. L. c. 278, § 29D. The defendant bears the burden of demonstrating that he may face or is facing one of the enumerated consequences. See Commonwealth v. Berthold, 441 Mass. 183, 185 (2004). To meet this burden, the defendant must show “more than a hypothetical risk of such a consequence, but that he actually faces the prospect of its occurring.” Id. The defendant must demonstrate also that the immigration consequences he may face or is facing were caused by the admission he seeks to nullify. See Commonwealth v. Pryce, supra. See also Commonwealth v. Barreiro, 67 Mass. App. Ct. 25, 26 (2006) (defendant must show “nexus . . . between the judge’s defective § 29D warning and an immigration consequence set out in the statute that materializes as a result of the conviction for which he lacked proper warning”). In this case, the defendant has not met this burden.
Where, as here, deportation is the only enumerated consequence that the defendant attests he may suffer, the defendant must show
3. Conclusion. The defendant’s motion to withdraw his admission to sufficient facts was properly denied. The denial of the motion to withdraw the admission to sufficient facts and the denial of the motion for reconsideration are affirmed.
So ordered.
Effectively, the defendant’s motion is one for a new trial. See Mass. R. Grim. R 30 (b), as appearing in 435 Mass. 1501 (2001); Commonwealth v. Furr, 454 Mass. 101, 106 (2009).
At the time of the defendant’s admission, G. L. c. 278, § 29D, provided, in relevant part, that a “[c]ourt shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the [c]ourt advises him . . . ‘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 . . . .’ If the [cjourt fails so to advise the defendant, and he later at any time shows that his plea and conviction may have one of the enumerated consequences, the [cjourt, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of ‘not guilty.’ Absent a record that the [cjourt provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.” See G. L. c. 278, § 29D, inserted by St. 1978, c. 383. The statute was later amended in ways not affecting this case. See note 9, infra.
We acknowledge the amicus brief on behalf of the defendant that was submitted jointly by the Committee for Public Counsel Services, the Massachusetts Law Reform Institute, the National Immigration Project of the National Lawyers Guild, the Political Asylum/Immigration Representation Project, and the Boston College Immigration and Asylum Project.
The District Court docket sheet does not indicate whether the defendant pleaded guilty or admitted to sufficient facts, and we are unable to determine which of the two occurred. Such a determination, however, has no bearing on our decision; both parties proceed on the assumption that the defendant either pleaded guilty or admitted to sufficient facts. “[W]here an admission to sufficient facts may lead to ... an immediate conviction and sentence ... it remains appropriate to treat an admission to sufficient facts as the equivalent of a plea of guilty for the purposes of G. L. c. 278, § 29D.” Commonwealth v. Villalobos, 437 Mass. 797, 801 (2002). In this opinion, we refer to the disposition of the charges as an admission to sufficient facts.
In 1999, the Immigration and Naturalization Service (INS) was responsible for enforcing Federal immigration law. In March, 2003, INS ceased to exist and its duties were transferred to the Department of Homeland Security (DHS). See Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 348 n.l (2009). See also 6 U.S.C. § 291(a) (2006).
Prior to 1996, written notice of the commencement of deportation proceedings was provided through an “order to show cause.” See 8 U.S.C. § 1252b (1994), repealed by Pub. L. No. 104-208, § 308(b)(6), 110 Stat. 3009-615 (1996). Under current law, the equivalent written notice is provided by a “notice to appear.” See 8 U.S.C. § 1229(a)(1) (2006).
In 1997, the defendant was convicted in the District Court of malicious destruction of property over $250 pursuant to G. L. c. 266, § 127. He filed a motion to withdraw his admission to sufficient facts in that case. The motion was denied.
The statute at the time of the defendant’s proceeding referred only to pleas of guilty or nolo contendere. It was amended thereafter to include an express reference to admissions to sufficient facts. See St. 2004, c. 225, § 1. Given the purposes of the statute both before and after the 2004 amendment, as well as this court’s long-standing treatment of admissions to sufficient facts as the equivalent of guilty pleas, see Commonwealth v. Villalobos, supra at 801; Commonwealth v. Mahadeo, 397 Mass. 314, 316-317 (1986), we are satisfied that the addition of a specific reference to admissions to sufficient facts was for clarification only, and does not imply that such admissions were not embraced by the prior statute.
The statute was amended in 2004 to require that the record providing evidence that the warnings were given be an “official record or a contemporaneously written record kept in the Court file.” St. 2004, c. 225, § 1. The new language applies only to pleas occurring on or after the effective date of the amendment. See St. 2004, c. 225, § 2. Thus, the amendment has no application to this case.
The letter was addressed to the defendant’s attorney and stated that she had asked the authoring attorney to “comment on the immigration consequences” of the defendant’s conviction of receiving stolen property. The letter refers to the defendant as “your client.”
Title 8 U.S.C. § 1227(a)(2)(A)(ii) (2006 & Supp.-H 2008) provides that “[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct... is deportable.”
In a postargument letter filed pursuant to Mass. R. A. R 16 (1), as amended, 386 Mass. 1247 (1982), the defendant presented the claim that, notwithstanding his record of additional criminal convictions, these convictions are the only ones that could subject him to deportation. It is improper to use rule 16 (1) to supplement the evidentiary record. In any event, even if this assertion were correct, it would not affect our conclusion that the defendant has failed to show that deportation based on the challenged conviction is more than a hypothetical possibility.
In 2009, the defendant received notice that DHS was commencing deportation proceedings against him. Because those proceedings began after the District Court judge ruled on the defendant’s motions, they were not before the motion judge and we do not consider them in our review.
The concurrence disagrees with our conclusion that a defendant who has shown that the Federal government has an express written policy calling for the initiation of deportation proceedings against him has met his burden of proving more than a hypothetical risk of an enumerated immigration consequence — deportation. We conclude that a defendant “actually faces the prospect of [deportation] occurring,” see Commonwealth v. Berthold, 441 Mass. 183, 185 (2004), where his deportation is not merely legally permis
Concurrence Opinion
(concurring, with whom Spina and Cordy, JJ., join). I agree with the court that a defendant must demonstrate more than a hypothetical risk that the challenged conviction will result in one of the enumerated immigration consequences in order to obtain relief under G. L. c. 278, § 29D (the immigration warnings statute). I agree also that the defendant has not met this burden here. I write separately because I do not agree that a showing that Federal immigration authorities have adopted an express written policy calling for the initiation of deportation proceedings based on the challenged offense is sufficient to demonstrate more than a hypothetical risk of deportation. The court’s test expands the class of people eligible for relief under G. L. c. 278, § 29D, beyond what our cases have allowed.
By enacting the immigration warnings statute, the Legislature did not intend to provide relief to every person who did not receive the warnings at the time he or she entered a guilty plea or plea of nolo contendere, or admitted to sufficient facts. See Commonwealth v. Berthold, 441 Mass. 183, 185 (2004). In order for relief to be available, the statute requires also that the defendant show that “his plea or conviction may have or has had one of
“to mean that the defendant must demonstrate more than a hypothetical risk of such a consequence, but that he actually faces the prospect of its occurring. To conclude otherwise would, as a practical matter, read the requirement out of the statute. Had the Legislature intended such a result, it could have easily accomplished it by simply providing that an alien, not advised of each of the three enumerated possible immigration consequences, has a right to withdraw his plea at any time.” (Emphasis supplied.)
Commonwealth v. Berthold, supra.
The court concludes that a showing that an express written policy of Federal immigration authorities calls for the initiation of deportation proceedings based on the challenged offense is sufficient to demonstrate more than a hypothetical risk that the defendant will in fact suffer deportation. See ante at 136. However, until Federal immigration authorities take steps toward deporting an alien, the risk of deportation, in my view, remains hypothetical. Federal authorities possess “long-established discretion to decide whether and when to prosecute or adjudicate removal proceedings or to execute removal orders.” See Cardoso v. Reno, 216 F.3d 512,517 (5th Cir. 2000), quoting Alvidres-Reyes v. Reno, 180 F.3d 199, 201 (5th Cir. 1999).
Additionally, “[t]he Attorney General may, in his discretion, waive” in individual cases several of the statutory provisions that render an alien ineligible for admission to the United States. See 8 U.S.C. § 1182(h) (2006). Furthermore, the Attorney General may cancel removal for aliens who are otherwise inadmissible or deportable if the alien meets certain statutory criteria. See 8 U.S.C. § 1229b (2006). The decision to exercise this authority with respect to an alien who meets the statutory criteria is discretionary. See Nadal-Ginard v. Holder, 558 F.3d 61, 64 n.4 (1st Cir. 2009); Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 906 (8th Cir. 2005).
In addition, today’s holding will be difficult to administer. Although the court claims that there is little possibility of uncertainty because of the requirement that a Federal immigra
Requiring a defendant to establish that the Federal government has taken affirmative steps to bring about deportation provides a “bright line” rule that is consistent with our case law requiring that a defendant face more than a hypothetical risk of deportation. See Commonwealth v. Berthold, supra. I believe that such a showing is necessary before permitting relief under the immigration warnings statute.
I agree with the portion of the court’s opinion concluding that the “presumption of regularity” announced in Commonwealth v. Lopez, 426 Mass. 657 (1998), does not apply to G. L. c. 278, § 29D. See ante at 132-134.