46 Mass. App. Ct. 928 | Mass. App. Ct. | 1999
On November 8, 1993, in Brookline District Court, the defendant, Oleg Podoprigora, admitted to sufficient facts to warrant a finding of guilty of one count each of assault and battery, assault and battery by means of a dangerous weapon, and threatening to commit a crime. In October, 1997, the same judge who had accepted the defendant’s admission to sufficient facts ordered the revocation of the defendant’s probation based upon the defendant’s violation
General Laws c. 278, § 29D, as appearing in St. 1996, c. 450, § 254, states that “[ajbsent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.” The defendant argues on appeal that the judge erred in his analysis because, in the absence of a tape recording or transcript of the proceedings, the statutory presumption is that the alien warnings were not given. The defendant makes the claim (unencumbered by citation to any authority) that “[t]o prevail at a hearing under the statute in these circumstances, the Commonwealth would need a clerk to testify he specifically remembered checking the box only after the immigration warning was given in this particular case.” The Commonwealth counters that it met its burden of providing a record affirmatively demonstrating that the defendant received the advisement by producing the docket sheet of the 1993 proceeding. This case turns on whether the docket sheet qualifies as a “record” within the meaning of G. L. c. 278, § 29D, so as to avoid operation of the statutory presumption in favor of the defendant. The Commonwealth persuasively argues, and we conclude, that docket sheets are part of the court records and may be presented as prima facie evidence of the facts recorded therein. See Washington Natl. Bank v. Williams, 190 Mass. 497, 503 (1906); Savage v. Welch, 246 Mass. 170, 176 (1923); Commonwealth v. Boudreau, 362 Mass. 378, 382 (1972); Commonwealth v. Deeran, 364 Mass. 193, 198 (1973); Barry v. Commonwealth, 390 Mass. 285, 289 (1983); Commonwealth v. Farris, 390 Mass. 300, 303-304 (1983); Commonwealth v. Napier, 417 Mass. 32, 34 (1994).
The recent decision in Commonwealth v. Pryce, 429 Mass. 556 (1999), underscores the correctness of the decision below with respect to the suf
So ordered.
At that time, the defendant was in the custody of the Immigration and Naturalization Service for reasons which are not clear on the record but which the judge appears to have thought were preliminary to his deportation. Arguably, on this record, the defendant’s motion could be denied because he failed to bear his burden of demonstrating not only the failure to receive the alien warnings but also the additional requirement of G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254, that “his plea and conviction may have one of the enumerated [deportation or exclusion] consequences.” Cf. Commonwealth v. Pryce, 429 Mass. 556, 558-559 (1999). Indeed, the record before us does not even establish that the defendant is an alien. Contrast Commonwealth v. Mahadeo, 397 Mass. 314, 318 (1986).