47 Mass. App. Ct. 914 | Mass. App. Ct. | 1999
The defendant appeals from the order denying his motion to withdraw his plea of guilty to possession of cocaine with intent to distribute. The defendant
We summarize the pertinent facts. In August, 1988, the defendant was convicted by a jury in the Superior Court of trafficking in more than 200 grams of cocaine. On November 23, 1990, a Superior Court judge allowed the defendant’s motion for a new trial. On November 26, 1990, the defendant pleaded guilty to so much of the indictment as charged him with possession of cocaine with intent to distribute and received a sentence of time served of 995 days. At the time of his plea, the plea judge informed the defendant that his conviction could result in his being denied citizenship or in his deportation but did not advise him that his conviction could also result in his being excluded from admission into the United States. On May 28, 1997, the defendant, who is a citizen of the Dominican Republic, sought admission to the United States via Puerto Rico.
In Commonwealth v. Jones, 417 Mass. 661, 664 (1994), the Supreme Judicial Court stated that the “statute is clear: ‘[i]f the Court 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 Court, on the defendant’s
The order denying the motion to withdraw the guilty plea is reversed. An order shall enter allowing the motion. The finding of guilty and the judgment are vacated.
So ordered.
General Laws c. 278, § 29D, as inserted by St. 1978, c. 383, provided in pertinent part as follows: “The Court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the Court advises him 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’. . . . If the Court 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 Court, 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’ ” (emphasis supplied).
The statute was amended, minimally, by St. 1996, c. 450, § 254.
The record is silent as to whether deportation proceedings were ever commenced against the defendant. At oral argument the defendant represented that he left the United States voluntarily.
As noted, the defendant’s trafficking conviction (of August 11, 1988) was voided by the allowance of the motion for new trial. Neither party has argued that the Immigration and Naturalization Service notice refers to a conviction other than that of November 26, 1990. In any event, the only matter before us is the guilty plea (and conviction) of November 26, 1990, for possession with the intent to distribute.