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Commonwealth v. Nsubuga

Appeals Court of Massachusetts, Middlesex

December 29, 2015

COMMONWEALTH
v.
EDWARD KIZITO NSUBUGA.

Heard: November 2, 2015.

Complaint received and sworn to in the Waltham Division of the District Court Department on April 26, 2004.

A motion to withdraw an admission to sufficient facts, filed on March 18, 2014, was heard by Tobin N. Harvey, J.

Edward Crane for the defendant.

Elizabeth Jane May, Assistant District Attorney, for the Commonwealth.

Present: Agnes, Sullivan, & Blake, JJ.

SULLIVAN, J.

The defendant, Edward Kizito Nsubuga, appeals from the denial of his motion to withdraw an admission to sufficient facts. The defendant contends that he was entitled to receive the statutory immigration warnings set forth in the 2004 amendments to G. L. c. 278, § 29D, as appearing in St. 2004, c. 225, § 1 (amended statute), and that the immigration warnings he received were inadequate to place him on notice that an admission to sufficient facts might result in deportation from the United States. We conclude that the 2004 amendments to the statute were not in effect at the time of his admission, and affirm.

Background.

The defendant was charged with assault and battery in violation of G. L. c. 265, § 13A(a.), on April 26, 2004. A citizen of Uganda, he was a lawful resident alien of the United States at the time of the arrest. On October 21, 2004, the defendant admitted to sufficient facts. The defendant was provided with an immigration warning that comported with G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254 (1996 statute)-[1] His case was continued without a finding, and the defendant was placed on probation. Approximately one year later, the case was dismissed.

The warnings provided under the 1996 statute[2] informed the defendant that a plea of guilty might result in immigration consequences, but did not explicitly state that an admission to sufficient facts might also have immigration consequences. In January of 2014, the defendant was arrested by an agent of the office of the United States Immigration and Customs Enforcement. Deportation proceedings ensued. The defendant then filed a motion to withdraw his admission to sufficient facts. He argued that at the time of his admission he was not given the immigration warning required by the amended statute, which added to the advisement a reference to admissions to sufficient facts.[3] The motion was denied on the ground that the 2004 amendment was inapplicable.

Discussion.

The amended statute was enacted on July 29, 2004. See St. 2004, c. 225. It contained no emergency preamble and no effective date. The defendant maintains that it became effective thirty days later, on August 28, 2004, because the statute relates to the "powers ... of courts." See Kagan v. United Vacuum Appliance Corp., 357 Mass. 680, 682 (1970). Therefore, he contends, his admission should be vacated because the court was required to provide the advisement in accordance with the amended statute. When a defendant admits to sufficient facts, and the amended statute applies, a warning that "[does] not include the required reference to disposition by way of an admission to sufficient facts" is inadequate, and the admission must be vacated. Commonwealth v. Marques, 84 Mass.App.Ct. 203, 206 (2013).[4]

"Generally, a statute without an emergency preamble does not become effective for ninety days. . . . However, under an exception, statutes which relate to 'powers ... of courts' take effect in thirty days. . . . Such an exception to a general law should be strictly construed." Vittands v.Sudduth, 41 Mass.App.Ct. 515, 518 (1996). Article 48 of the Amendments to the Massachusetts Constitution, The Referendum, Part I, provides that a statute lacking an emergency preamble shall take effect no "earlier than ninety days after it has become a law, " unless the statute is one "which may not be made the subject of a referendum petition." See G. L. c. 4, ยง 1. As relevant here, a referendum petition is not permitted where the law pertains to "the appointment, qualification, tenure, removal or compensation of judges; or to the powers, creation or abolition of courts." Article 48 of the Amendments to the ...


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