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Commonwealth v. Cortez

Appeals Court of Massachusetts, Suffolk

December 30, 2014

Commonwealth
v.
Jaime Cortez

Argued: October 7, 2014.

Complaint received and sworn to in the Chelsea Division of the District Court Department on April 9, 2004.

A motion for a new trial, filed on June 10, 2013, was heard by Timothy H. Gailey, J.

Order denying motion to withdraw guilty plea affirmed.

Adriana Contartese for the defendant.

Priscilla Guerrero ( Amanda Teo, Assistant District Attorney, with her) for the Commonwealth.

Present: Cohen, Wolohojian, & Blake, JJ.

OPINION

[22 N.E.3d 949] Wolohojian, J.

On December 1, 2004, the defendant tendered a plea in which he admitted to sufficient facts to support a charge of assault and battery by means of a dangerous weapon, and received a continuance without a finding (CWOF).[1] Approximately one month earlier, G. L. c. 278, § 29D, had been amended to require that defendants be specifically advised by the plea judge that an admission to sufficient facts may have adverse immigration consequences if the defendant is not a United States citizen.[2] Before that amendment, the statute referred only to pleas of guilty

Page 790

or nolo contendere, and required that the judge advise the defendant only that a " conviction" might result in immigration consequences. See G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254.

In 2013, the defendant moved to vacate the judgment[3] and, in support of that motion, submitted an affidavit in which he attested that the plea judge did not inform him that an admission to sufficient facts and CWOF might result in the enumerated immigration consequences, but instead advised him only that a conviction might do so.[4] Given the passage of time, there is no transcript of the plea.[5] However, other [22 N.E.3d 950] contemporaneous evidence suggests that the new warning may not have been given.[6] Specifically, the judge's signed certification on the " green sheet" states:

" I further certify that the defendant was informed and advised that if he or she is not a citizen of the United States, a conviction of the offense with which he or she was 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" (emphasis supplied).

The defendant's contemporaneous signed acknowledgement of alien warning (also on the green ...


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