431 Mass. 340 | Mass. | 2000
We granted the Commonwealth’s application for further appellate review to consider the issue of what constitutes an adequate immigration warning. See G. L. c. 278, § 29D. The defendant, Oriol Soto, asserts that his second motion for a new trial should have been allowed because the judge did not advise him properly as required by G. L. c. 278, § 29D. The Appeals Court reversed the order denying the motion for a new trial. Commonwealth v. Soto, 47 Mass. App. Ct. 914 (1999). We vacate the order denying the defendant’s second motion for a new trial and remand for further proceedings consistent with this opinion.
In 1997, the defendant filed a motion to vacate his 1990 plea alleging that the judge did not comply with G. L. c. 278, § 29D. A Superior Court judge denied the defendant’s motion, endorsing the motion: “After review of all documents and transcripts, motion denied without hearing since defendant was warned by court.” The defendant timely appealed.
The record reflects that, in 1990, when the defendant offered a plea to so much of the indictment as alleged possession of cocaine with the intent to distribute, the defendant was advised by the court as follows:
The judge: “Are you a citizen of the United States?”
The defendant: “I’m not, but my wife and kids, they are legal, but I’m legal in this country since 1979, since 1981.”
The judge: “All right, I am required to inform you that a conviction based on your plea of guilty could result in your being denied citizenship, or for that matter, being deported. Do you understand that?”
The defendant: “Yes, I do.”
The judge: “And understanding that, do you still wish to plead guilty?”
The defendant: “Yeah.”
Subsequent to that plea in May, 1997, the Immigration and Naturalization Service (INS) initiated proceedings to remove the defendant from the United States — he was in Puerto Rico at the time — because of his prior narcotics conviction. In the notice to appear, the INS classified him as an “arriving alien.”
The judge at the plea colloquy did not advise the defendant that he could be excluded from admission to the United States. The Commonwealth does not argue otherwise. Rather, it claims that all that is required is that a defendant know his guilty plea may have immigration consequences. Commonwealth v. Lamrini, 27 Mass. App. Ct. 662, 666 (1989). We do not agree.
The Commonwealth’s reliance on Lamrini is unpersuasive. The warnings in Lamrini were “barely adequate.” Id. at 667. As the Appeals Court noted, “[t]he better practice would have been for the judge to read directly from the statute . . . Id. Lamrini knew the exact consequences of her plea — deportation. By contrast, in this case the defendant was not told he could be excluded from admission to the United States.
The Legislature has put the three required warnings in quotation marks, and each of them is required to be given so that a person pleading guilty knows exactly what immigration consequences his or her guilty plea may have. It is incumbent on the judge to notify a defendant that there are three specific consequences to a plea: (1) deportation; (2) exclusion of admission to the United States; and (3) denial of naturalization. A defendant must be advised of all three consequences of his plea. The words of the statute do not permit any other interpretation. “We are not free to ignore or to tamper with that clear expression of legislative intent.” Commonwealth v. Jones, 417 Mass. 661, 664 (1994).
The order denying the defendant’s motion to withdraw his guilty plea is vacated. An order shall enter allowing the defendant’s motion to withdraw his guilty plea and vacating the judgment. This matter is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.