Heard: April 1, 2019.
Complaint
received and sworn to in the Dorchester Division of the
Boston Municipal Court Department on August 26, 2016. A
motion to withdraw a plea was heard by Lisa Ann Grant, J.
The
Supreme Judicial Court granted an application for direct
appellate review.
Edward
Crane for the defendant.
Erin
D. Knight, Assistant District Attorney, for the Commonwealth.
Emma
Winger, Committee for Public Counsel Services, for Committee
for Public Counsel Services, amicus curiae, submitted a
brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
KAFKER, J.
The
defendant, Denver Petit-Homme, currently faces deportation
based in part upon an admission to sufficient facts for a
finding of guilty on two counts of assault by means of a
dangerous weapon. During the plea colloquy conducted in
connection with that admission, the judge warned the
defendant about certain "practically inevitable"
immigration consequences that would arise if the defendant
did not have United States citizenship and "if . . . the
crime admitted to is one that presumptively mandates removal
from the United States" (emphasis added), as required by
Mass. R. Crim. P. 12 (c) (3) (A) (iii) (b), as appearing in
470 Mass. 1501 (2015) . The judge neglected, however, to
recite the following, more general words of warning
prescribed by G. L. c. 278, § 29D:
"If you are not a citizen of the United States, you are
hereby advised that the acceptance by this court of your plea
of guilty, plea of nolo contendere, or admission to
sufficient facts may have consequences of deportation,
exclusion from admission to the United States, or denial of
naturalization, pursuant to the laws of the United
States."
The
same statute requiring oral delivery of this warning at all
criminal plea colloquies further provides:
"If the court fails so to advise the defendant, and he
later at any time shows that his plea and conviction may have
or has had 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, plea of nolo contendere, or admission of sufficient
facts, and enter a plea of not guilty."
Id. Approximately one and one-half years after the
plea colloquy, following the commencement of deportation
proceedings, the defendant unsuccessfully moved to withdraw
the admission based on the contention that the judge failed
to provide the statutory warning.
The
defendant appealed, and we granted his subsequent application
for direct appellate review to consider whether the
immigration consequences warning articulated by the plea
judge during the colloquy sufficed "so to advise"
the defendant, as required by G. L. c. 278, § 29D. The
defendant argues that it did not, and that reversal is thus
required where the challenged admission led to the pending
removal proceedings. We agree. Given the complexity of
Federal immigration law, the offense-specific warning
provided to the defendant in the instant case is confusing,
and it is neither equivalent to, nor an adequate substitute
for, the more general advisory that G. L. c. 278, § 29D,
entitles every criminal defendant to receive. The order
denying the defendant's motion to withdraw his plea is
therefore reversed, and the matter is remanded for further
proceedings consistent with this opinion.[1]
Facts
and procedural history.
On
August 2 6, 2016, a criminal complaint issued from the
Dorchester Division of the Boston Municipal Court Department,
charging the defendant with two counts of assault by means of
a dangerous weapon and two counts of making a threat to
commit a crime. The charges stemmed from an incident that
occurred on August 6, 2016, in which the defendant approached
two men, called their attention to a gun in the waistband of
the defendant's pants, and threatened to shoot them.
On
January 10, 2017, the defendant tendered an admission to
sufficient facts for a finding of guilty on all charges
(admission). During the oral colloquy that the judge
conducted prior to accepting the defendant's admission,
the judge stated, substantially as required by Mass. R. Crim.
P. 12 (c) (3) (A)
(iii)
(b):
"[I]f you are not a citizen of the United States and the
crime admitted to is one that presumptively mandates removal
from the United States, and the federal officials decide to
seek removal, acceptance by this Court of your admission will
make it practically inevitable that this admission will
result in deportation, exclusion from admission or denial of
naturalization under the laws of the United States."
The
judge then asked whether the defendant understood the
warning, and the defendant replied, "Yes." When
asked by the court, defense counsel confirmed that "the
charges, the elements that need to be proven, maximum
penalties, possible defenses, options other than admitting to
sufficient facts, as well as potential consequences
including, but not limited to, the immigration
consequence" had been explained to the defendant by
counsel. The judge found a factual basis for the
defendant's admission and pronounced it "made freely
and voluntarily with full knowledge of the
consequences." After accepting the admission, the court
continued the case without a finding for three years and
imposed a coterminous program of supervised
probation.[2]
On June
13, 2017, following an evidentiary hearing, the same judge
who had accepted the defendant's admission found that the
defendant had committed new criminal offenses in violation of
applicable probation terms. Accordingly, the court revoked
the continuance without a finding, entered a finding of
guilty ...