Commonwealth v. Hilaire

752 N.E.2d 737, 51 Mass. App. Ct. 818, 2001 Mass. App. LEXIS 932
CourtMassachusetts Appeals Court
DecidedJune 11, 2001
DocketNo. 00-P-131
StatusPublished
Cited by10 cases

This text of 752 N.E.2d 737 (Commonwealth v. Hilaire) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Hilaire, 752 N.E.2d 737, 51 Mass. App. Ct. 818, 2001 Mass. App. LEXIS 932 (Mass. Ct. App. 2001).

Opinions

Rapoza, J.

In Federal custody and facing the prospect of [819]*819deportation to his native Haiti,2 the defendant moved in District Court to withdraw his admissions to sufficient facts on several offenses3 and requested a new trial, pursuant to Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). In that motion he claimed that he was not given proper immigration warnings, see G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254, and that his admissions to sufficient facts were not intelligently made. The defendant’s motion was denied after a hearing by the judge who had accepted his admissions, and he appealed. We focus on the adequacy of the immigration warnings and, concluding that they were not given to the defendant as required by G. L. c. 278, § 29D, we reverse.

The requirements imposed by the courts on a judge who accepts a guilty plea are many, but those imposed by the Legislature are few. Significantly, one such provision is that the court give immigration warnings to a defendant who tenders a plea.4 Indeed, in G. L. c. 278, § 29D, the Legislature sets out the very words that the judge should employ:

“If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.”

2The Legislature has put the three required warnings [deportation, exclusion from the United States, denial of naturalization] [820]*820in quotation marks, and each of them is required to be given so that a person pleading guilty knows exactly what immigration consequences his or her guilty plea may have.” Commonwealth v. Soto, 431 Mass. 340, 342 (2000). As Justice Abrams clearly enunciated, “[a] defendant must be advised of all three consequences of his plea. The words of the statute do not permit any other interpretation.” Ibid. See Commonwealth v. Desorbo, 49 Mass. App. Ct. 910, 911 (2000) (better practice is for the judge to give warnings as specified by the Legislature).

The statute also provides that, where the court has failed to give the immigration warnings to a defendant whose guilty plea may have one of the enumerated consequences, “the court . . . shall vacate the judgment, and permit the defendant to withdraw the plea of guilty.” G. L. c. 278, § 29D (emphasis supplied). See Commonwealth v. Mahadeo, 397 Mass. 314 (1986) (defendant not warned that conviction could have adverse consequences on his immigration status entitled to have the judgment of conviction vacated); Commonwealth v. Soto, supra (defendant who was undergoing Federal removal proceedings and had not been advised that he could be excluded from admission to the United States following conviction entitled to allowance of motion to withdraw guilty plea). Compare Commonwealth v. Jones, 417 Mass. 661 (1994) (motion to withdraw guilty plea allowed where Commonwealth could not satisfy its burden of proving that judge who accepted original plea had advised the defendant that deportation could be a consequence of his conviction).

In the present case, the judge who accepted the defendant’s admissions failed to comply with the statute when he conscientiously, but inadequately, told the defendant: “If you’re not a full United States citizen, a finding of guilty in these cases could affect your status; do you understand that?”5 The judge’s words neither conformed to the language of G. L. c. 278, § 29D, nor did they address the three potential consequences embedded in the statute. It is not enough that, in some general way, a defendant “know[s] his guilty plea may have immigration consequences.” Commonwealth v. Soto, 431 Mass. at 342. The judge’s allusion to undescribed effects on the defendant’s [821]*821“status” in the United States failed to convey the important message specified by the Legislature: that a noncitizen who pleads guilty runs a significant risk of suffering three serious and specific immigration consequences. The purpose of G. L. c. 278, § 29D, is to ensure that, while the noncitizen who pleads guilty does so at his own peril, he should not do so without fair warning.

The dissent acknowledges that the judge’s spoken words did not communicate the immigration warnings elaborated in G. L. c. 278, § 29D, but nonetheless contends that a written advisement of those warnings is sufficient to comply with the statute.6 We disagree.

A fair reading of G. L. c. 278, § 29D, clearly indicates that the Legislature intended that a defendant be orally advised by a judge of the immigration consequences of his plea. The statute states that “[t]he court shall not accept a plea of guilty . . . unless the court advises [the] defendant” of the three warnings. The defendant, in turn, “shall not be required at the time of his plea to disclose to the court his legal status in the United States.” The statute further states that, “[i]f the court fails so to advise the defendant, and he later at any time shows that his plea and conviction may have one of the enumerated consequences, the Court . . . shall vacate the judgment, and permit the defendant to withdraw the plea of guilty.”

Not only does G. L. c. 278, § 29D, disclose a legislative intent that the warnings be given orally by a judge, but there [822]*822also is no provision in the statute for the warnings to be administered in written form. The statute plainly contemplates that the judge shall orally advise the defendant of the immigration consequences of his tender during the plea colloquy. See Commonwealth v. Soto, 431 Mass. at 342 (“General Laws c. 278, § 29D . . . requires the judge to advise a person pleading to criminal charges as follows: [statutory advisements] .... It is incumbent on the judge to notify a defendant that there are three specific consequences to a plea” [emphasis supplied]); Commonwealth v. Lamrini, 27 Mass. App. Ct. 662, 667 (1989) (“The better practice would have been for the judge to read directly from the statute . . . .” [emphasis supplied]); Commonwealth v. Desorbo, 49 Mass. App. Ct. at 911 (referring to “the advice that G. L. c. 278, § 29D, requires judges to give to a defendant tendering a plea of guilty .... As the Legislature has set out and placed in quotation marks the exact text of what judges should say on such occasions, and it is only one sentence, the proper practice is to give the warning as the Legislature has written it” [emphasis supplied]); Commonwealth v. Ciampa, 51 Mass. App. Ct. 459, 462 (2001) (a defendant’s conviction shall be vacated “if, at the time of his guilty plea, the judge fails to warn him of the three immigration consequences of his conviction” [emphasis supplied]).

The inclusion of the “Tender of Plea or Admission/Waiver of Rights” form in the record of the proceedings below changes nothing, although the dissent suggests otherwise. The importance of a written record arises in the context of the statutory provision that “[a]bsent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.” G. L. c.

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Bluebook (online)
752 N.E.2d 737, 51 Mass. App. Ct. 818, 2001 Mass. App. LEXIS 932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-hilaire-massappct-2001.