April 1, 2019.
N.E.3d 64] 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.
Crane, Cambridge, for the defendant.
D. Knight, Assistant District Attorney, for the Commonwealth.
Winger, Committee for Public Counsel Services, for Committee
for Public Counsel Services, amicus curiae, submitted a
Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
N.E.3d 65] 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
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 defendants 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.
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 defendants
motion to withdraw his plea is therefore reversed, and the
matter is remanded for further proceedings consistent with
N.E.3d 66] Facts and procedural history .
August 26, 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 defendants pants, and threatened to shoot them.
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 defendants 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."
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 defendants
admission and pronounced it "made freely and voluntarily
with full knowledge of the consequences." After