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Commonwealth v. Valdez

Supreme Judicial Court of Massachusetts, Middlesex

August 17, 2016

COMMONWEALTH
v.
FRANK VALDEZ [1]

          Heard: April 4, 2016.

         A motion to withdraw a guilty plea, filed on November 4, 2013, was considered by Kathe M. Tuttman, J., and a motion for reconsideration was also considered by her.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Scott W. Kramer for the defendant. Jamie Michael Charles, Assistant District Attorney, for the Commonwealth.

          Jennifer Klein & Wendy S. Wayne, Committee for Public Counsel Service, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. [2]

          GANTS, C.J.

         Under G. L. c. 278, § 29D, where a judge fails to advise a defendant during the plea colloquy that conviction may have the consequence of exclusion from admission to the United States, the conviction must be vacated upon motion of the defendant if the defendant shows that his or her conviction "may have" that consequence. The issue on appeal is what the defendant must show to establish that his conviction "may have" the consequence of exclusion from admission to the United States. We conclude that a defendant satisfies this burden by showing (1) that he has a bona fide desire to leave the country and reenter, and (2) that, if the defendant were to do so, there would be a substantial risk that he or she would be excluded from admission under Federal immigration law because of his or her conviction. Because we conclude that the defendant has met this burden, we vacate the defendant's conviction and remand the case for a new trial.[3]

         Background.

         The defendant was born in the Dominican Republic and is a citizen of that country. In 1985, he was admitted to the United States as a lawful permanent resident alien. In January, 1989, he pleaded guilty in the Superior Court to an indictment alleging larceny of a motor vehicle, in violation of G. L. c. 266, § 28, and was sentenced to a prison term of five years at the Massachusetts Correctional Institution at Concord.

         The defendant is now a resident of Connecticut and owns his own business selling automobiles. Since 1997, he has been in a relationship with a citizen of the United States, with whom he has three children. No immigration proceedings have been commenced against the defendant by Federal authorities.

         At some time before September 27, 2013, the defendant retained an immigration attorney, Nareg Kandilian, to advise him regarding his desire to become a United States citizen and to travel outside the United States. He told Kandilian that he wished to see friends and family in the Dominican Republic that he had not seen in many years, but feared that, if he were to leave the United States, he would be deemed inadmissible and placed into removal proceedings upon his attempt to reenter. Kandilian reviewed the docket information in this case and the defendant's board of probation record. The attorney concluded that, because larceny of a motor vehicle is a "crime involving moral turpitude" punishable by imprisonment for more than one year, if the defendant were to travel outside the United States and attempt to reenter, he would be found inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012), and removal proceedings would be initiated against him.[4] The attorney also concluded that the defendant was convicted of an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(G) (2012) and is deportable under 8 U.S.C. § 1227(a)(2)(A)(iii) (2012). The attorney further concluded that the defendant is deportable under 8 U.S.C. § 1227(a)(2)(A)(i), because the defendant's offense is a crime involving moral turpitude that was committed within five years of his admission to the United States.

         To avoid these consequences, the defendant, through counsel, moved to withdraw the guilty plea and vacate the conviction, claiming that the judge accepted his plea without advising that his conviction "may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States, " as required by G. L. c. 278, § 29D. In support of his motion, the defendant filed affidavits from Kandilian and himself, and a memorandum dated March 2, 2011, from John Morton, Director of United States Immigration and Customs Enforcement (ICE), to all ICE employees ("Morton memorandum"). In the memorandum, Morton declared that ICE "only has resources to remove approximately 400, 000 aliens per year, less than [four] percent of the estimated illegal alien population in the United States, " and therefore "must prioritize the use of its enforcement personnel, detention space, and removal resources to ensure that the removals the agency does conduct promote the agency's highest enforcement priorities, namely national security, public safety, and border security." He identified "aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders, " among those given the highest priority for removal. "For purposes of prioritizing the removal of aliens convicted of crimes, " he directed ICE personnel to refer to offense levels, "with Level 1 and Level 2 offenders receiving principal attention." Level 1 offenders include "aliens convicted of 'aggravated felonies, ' as defined in [8 U.S.C. § 1101(a)(43)]." Morton also emphasized the need "for ICE employees to exercise sound judgment and discretion consistent with these priorities, " and noted that "[p]articular care should be given when dealing with lawful permanent residents, juveniles, and the immediate family members of [United States] citizens."

         In support of its opposition to the motion, the Commonwealth filed an affidavit from the then retired plea judge, who stated that he "invariably" informed a defendant that "the guilty plea might lead to his or her deportation or prevent him or her from becoming a naturalized citizen, " and that he would have given the defendant these warnings in accordance with his invariable practice. He also stated, "At some point after 1988, I added a warning that the guilty plea might also prevent reentry into the United States, but I cannot recall precisely when I did so." He noted that he reviewed the plea colloquy he conducted on November 16, 1988, in a different case involving a different defendant, and that colloquy included the deportation and naturalization warnings, but not the warning regarding reentry.

         The motion judge, based on the affidavits alone, found that the Commonwealth had met its burden of showing that the defendant had been properly advised at the plea hearing that his guilty plea could subject him to deportation or denial of naturalization, but had not met its burden of showing that he had been advised that his plea could subject him to exclusion from admission to the United States should he leave the country and attempt to reenter. The judge nonetheless denied the motion because, citing Commonwealth v. Grannum, 457 Mass. 128 (2010), she found that the defendant "has not established that he would be subject to an express written policy of exclusion should he choose to leave the United States and desire to re-enter, " and therefore "has shown no more than a hypothetical risk" of exclusion. The defendant filed a motion for reconsideration, which the judge also denied; the defendant then timely appealed from both orders.

         The Appeals Court affirmed in a published opinion, but rested its decision on a different ground. Commonwealth v. Valdez, 88 Mass.App.Ct. 332 (2015). The court agreed with the motion judge that the Commonwealth had failed to prove that the defendant received the required warning regarding exclusion from admission to the United States. Id. at 332. It recognized that the defendant had been convicted of a crime involving moral turpitude and "very likely would be excluded from reentry if he travels outside the United States." Id. at 336. It also recognized that, because he had been convicted of an aggravated felony, he is deportable under 8 U.S.C. § 1227(a) (2) (A) (iii) . Id. But the court concluded that the defendant had failed to meet his burden of showing that "he faces the consequence of exclusion, " Id. at 335, because he "has not been excluded from the United States, " Id. at 332; "there is no pending proceeding to exclude him from the United States, " Id. at 338; and there is no "pending deportation proceeding . . . that would increase the likelihood that he would be excluded." Id. We granted the defendant's application for further appellate review.

         D ...


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