Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. DeCarvalho

Appeals Court of Massachusetts

July 2, 2015

Commonwealth
v.
Julio C. DeCarvalho

Editorial Note:

This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).

Order allowing motion to vacate conviction reversed.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Seventeen years after the defendant admitted to sufficient facts to find him guilty of operating a motor vehicle while under the influence of intoxicating liquor, a judge (who was not the plea judge) allowed his motion to vacate his conviction. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The defendant asserted in his motion and affidavit that the judge's immigration warnings and his admission to sufficient facts were invalid because he did not understand English.[1] See G. L. c. 278, § 29D. The Commonwealth appeals, claiming the defendant failed to make a sufficient showing that justice was not done, and also that the judge abused her discretion by allowing the motion to vacate without holding an evidentiary hearing or issuing written findings. We agree and reverse.

The Commonwealth claims the evidence before the judge, i.e., the defendant's self-serving affidavit and a photocopy of his visa document, was insufficient to overcome the unfair prejudice to the Commonwealth where the disposition of the defendant's case had been left unchallenged for such a lengthy period of time. We agree. See Commonwealth v. Lopez, 426 Mass. 657, 661-662, 690 N.E.2d 809 (1998).[2]

Under G. L. c. 278, § 29D, inserted by St. 1978, c. 383, the defendant may be allowed to withdraw his admission to sufficient facts only if the judge failed to advise him of the potential immigration consequences of his admission, " and he later at any time shows that his [admission] may have one of the enumerated consequences." Here, the defendant did not aver that the judge failed to provide the advisement of the potential immigration consequences,[3] or even that the judge did so incorrectly. See Commonwealth v. Grannum, 457 Mass. 128, 133-134, 928 N.E.2d 339 (2010). He only claims he did not understand the warnings, or any of the rights he was advised of during the plea colloquy, because he was not fluent in English at the time of his admission. His self-serving affidavit is contradicted, however, by the contemporaneous record. The defendant apparently did have sufficient command of English to converse with the arresting police officers on the night of his arrest, comprehend the judge's instructions at his arraignment later that morning, and advocate on his own behalf for a favorable disposition of his case (i.e., a continuance without a finding instead of the prosecutor's recommendation for a guilty finding).

The defendant's § 29D claim also fails because he has not averred " that he may face or is facing one of the enumerated [immigration] consequences." [4] Id. at 134. Even assuming he had shown the immigration warnings were not correctly administered, " the defendant must show 'more than a hypothetical risk of such a consequence, but that he actually faces the prospect of its occurring.'" Ibid., quoting from Commonwealth v. Berthold, 441 Mass. 183, 185, 804 N.E.2d 355 (2004). See Commonwealth v. Casimir, 68 Mass.App.Ct. 257, 259, 861 N.E.2d 497 (2007). The defendant has not done so; therefore, his claim is facially deficient and should have been rejected.

Even if the defendant had met his burden, however, the Commonwealth was entitled to an evidentiary hearing. See Commonwealth v. Lopez, supra at 664-665. In this seventeen year old case, the facts asserted by the defendant in his affidavit were by no means uncontroverted. The Commonwealth challenged the defendant's unsupported claims, i.e., that he did not understand English at the time of his admission, and that the required immigration warnings were invalid. As " [h]olding an evidentiary hearing provides the Commonwealth the opportunity to challenge the evidence presented in the affidavits," Commonwealth v. Gordon, 82 Mass.App.Ct. 389, 395, 974 N.E.2d 645 (2012), it was improper to allow the motion without having held one here.[5]

Order allowing motion to vacate conviction reversed.

Cypher, Meade & Massing, JJ. [6]


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.