Commonwealth v. Petit-Homme

         Argued April 1, 2019.

         [128 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.

         Edward Crane, Cambridge, 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.

         OPINION

         KAFKER, J.

         [128 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

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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

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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]

         [128 N.E.3d 66] Facts and procedural history .

         On 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 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 ...