429 Mass. 556 | Mass. | 1999
The defendant pleaded guilty in the Boston Municipal Court on March 28, 1991, to possession of cocaine, in violation of G. L. c. 94C, § 34. On April 17, 1997, he moved for a new trial claiming, inter alia, that at the time of his guilty plea, he was not given the warning required by G. L. c. 278,
After the conviction referred to above and other convictions the defendant was deported in August, 1992. He was subsequently arrested following his illegal reentry into the United States. He now challenges his 1991 conviction to obtain a revision of his Federal sentence on the illegal reentry charge which his numerous convictions enhanced.
In regard to his claim that the trial judge failed to give him the immigration warning required by G. L. c. 278, § 29D,
Discussion. At first glance and, as the Appeals Court decided, this case appears to be governed by our decision in Commonwealth v. Jones, 417 Mass. 661 (1994). On analysis we
The presumption created by G. L. c. 278, § 29D, arises when there is no record that the court provided the required advisement. In Commonwealth v. Jones, supra at 662, the judge denied the motion because of the defendant’s excessive delay in bringing the matter before the court. Apparently there was no record of what transpired when the defendant admitted to sufficient facts. That is not the case here. First, there is a record that a hearing took place, although there is no mention of the deportation advisement. The motion judge then relied on what he knew to be the practice of his court to reconstitute the record. Another important difference exists between the facts we confronted in Commonwealth v. Jones, supra, and those before us now. In Commonwealth v. Jones, supra at 664, we said, “For all that appears, until 1992 [eleven years after his conviction], [the defendant] was unaware that, before his conviction, he should have been advised of the possibility of deportation as a result of his admission to sufficient facts.” Here, however, we know from contemporaneous court records involving other charges against this defendant that he was aware that his conviction could result in his deportation. In 1989, a complaint for possession of a class B substance with intent to distribute was brought against him in the Dorchester District Court. He was found guilty on this complaint in 1989 and the docket shows that the deportation warning was given with the recommendation that no immigration action be taken. Subsequently, he filed a motion to revise and revoke, which was allowed, and he was placed on probation. When he violated the terms of his probation, the recommendation against deportation was rescinded. After a de novo appeal to the Boston Municipal Court, the defendant pleaded guilty on July 18, 1991. On February 18, 1998, in a memorandum and order pursuant to its rule 1:28, the Appeals Court, relying on the docket entry, “alien warning given” and the finding that the plea was willing, knowing, and voluntary, affirmed the denial of the defendant’s motion for a new trial.
Another factor distinguishes our decision here from Commonwealth v. Jones, supra. There, in spite of the lapse of time
We also note that, even if the statute is construed to apply where the defendant has already been deported, the defendant’s cause is not advanced. If read in this way, the statute would require the defendant to show that this conviction caused his deportation. The defendant makes no such showing, and from court records and affidavits we know that he had been convicted of other offenses which were considered at the time of his deportation.
In sum, therefore, we have a record that the defendant received a hearing augmented by a judge’s finding that it was standard practice to give the alien warning at such hearing. We know that the defendant was aware when he entered his plea that it could result in his deportation. Furthermore, the statutory presumption which he seeks to invoke has no apparent application when his motion for a new trial comes after deportation. Nor has he satisfied the statutory requirement that he show that this conviction caused him to be deported. In such circumstances the motion judge was correct in denying the defendant’s motion to vacate his conviction of March 28, 1991, and grant him a new trial.
Finally, we note that we have not considered what effect, if any, the presumption of regularity that we recently articulated in Commonwealth v. Grant, 426 Mass. 667, 670-671 (1998), and Commonwealth v. Lopez, 426 Mass. 657, 661 (1998), may have on the statutory presumption of G. L. c. 278, § 29D.
Judgment affirmed.
General Laws c. 278, § 29D, provides in pertinent part:
“The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court advises such 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 . . . .’ ”
The defendant’s claim that he was not advised of his right to appeal from his conviction was properly denied by the motion judge based on the defendant’s inadequate affidavit and his failure to demonstrate that his conviction, if not reversed, would result in manifest injustice. See Commonwealth v. Gagliardi, 418 Mass. 562, 564-565 (1994), cert. denied, 513 U.S. 1091 (1995).
The motion was in all material respects the same as the motion before us here.