Opinion
16-P-959
03-10-2017
COMMONWEALTH v. Abdelmajid CHAHRI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order denying his motion to withdraw his pleas, claiming that the judge's immigration warning pursuant to G. L. c. 278, § 29D, was insufficient. We affirm.
Background . On September 15, 2014, the defendant attempted to tender admissions to facts sufficient for findings of guilt on charges of open and gross lewdness, G. L. c. 272, § 16 ; disorderly conduct, G. L. c. 272, § 53 ; and resisting arrest, G. L. c. 268, § 32B. After considering a summary of the underlying facts, the judge rejected the proposal to continue the case without findings of guilt. The judge informed the defendant and his attorney:
"if he wants to resolve [it] right now, if he wants to accept responsibility, it would be guilty one year in the house of correction suspended for a period of one year, no alcohol, no drugs, stay away from the victim in the case, evaluation and treatment for substance abuse issues, and any sex offender treatment that's deemed necessary by the probation, also a stay away from Revere Beach. Count two would be the same. It would be concurrent. Count three would be guilty file."
The defendant accepted the judge's proposal after conferring with his lawyer. In the ensuing colloquy, the defendant acknowledged that he understood the charges against him, that he was giving up his right to a trial on those charges, and that he was doing so voluntarily. Relevant here, the judge advised the defendant "if you were not a citizen of the United States, a finding of guilty on this charge might have a consequence of deportation, denial of naturalization, or exclusion from this country." The defendant responded that he understood.
When the defendant informed the judge that he did not remember the underlying facts because he was under the influence of alcohol at the time, the following exchange occurred:
THE COURT : "If we have a trial and the Commonwealth calls the witnesses and they're in this courtroom, are you telling me the jury would, in fact, conclude you're guilty?"
THE DEFENDANT : "They would."
THE COURT : "They would?"
THE DEFENDANT : "Yes."
THE COURT : "All right. So you admit that the Commonwealth has overwhelming evidence against you, correct?"
THE DEFENDANT : "Yes."
The judge accepted the defendant's change of pleas and the clerk recorded findings of guilty. A sentence of one year in a house of correction was suspended for one year on the conditions the judge had earlier described.
On or about May 29, 2015, the defendant, a citizen of Morocco, was served with a notice to appear for removal proceedings by the Department of Homeland Security. The notice alleged that the defendant was removable from the United States because he had "been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct," specifically, malicious destruction of property over $250 on September 11, 2014, and, in the instant case, open and gross lewdness on September 14, 2014.
Approximately one year later, the defendant filed a motion to withdraw his pleas in this case arguing that the immigration warning given by the judge did not comply with the statutory requirements of G. L. c. 278, § 29D. The defendant asserted that he had not pleaded guilty, but only admitted to facts sufficient for a guilty finding. He argued that the judge's immigration warning, which referred only to the consequences of a guilty plea, was therefore insufficient. At a hearing on the motion, in response to a suggestion that the defendant had not pleaded guilty, the judge stated,
In relevant part, General Laws c. 278, § 29D, provides:
"The court shall not accept a plea of guilty ... or an admission to sufficient facts ... unless the court advises such defendant of the following: '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 ... 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 court shall advise such defendant during every plea colloquy at which the defendant is proffering a plea of guilty ... or an admission to sufficient facts....
"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 ... shall vacate the judgment, and permit the defendant to withdraw the plea of guilty, ... or admission of sufficient facts, and enter a plea of not guilty."
THE COURT : "I disagree. He proffered a continued without a finding. I rejected that."
DEFENSE COUNSEL : "Mm-hm."
THE COURT : "He then took the green sheet and indicated he accepted the guilty plea. Then during the colloquy, I asked him if he pled guilty, and he said yes. That's not an admission to sufficient facts."
"A green sheet is a form 'promulgated pursuant to Rule 4 of the District/Municipal Court Rules of Criminal Procedure and used to tender a plea under the procedures set forth in G. L. c. 278, § 18.' " Commonwealth v. Haskell , 76 Mass. App. Ct. 284, 287 n. 3 (2010), quoting from Commonwealth v. Peterson , 51 Mass. App.Ct. 779, 782 n.6 (2001).
The transcript of the change of pleas hearing, which the judge had not seen, reflects that the defendant was not asked directly if he was pleading guilty.
The motion to withdraw the pleas was denied and this appeal followed.
Discussion . "A motion to withdraw a guilty plea is treated as a motion for a new trial," Commonwealth v. Furr , 454 Mass. 101, 106 (2009), and is "committed to the sound discretion of the judge." Commonwealth v. Scott , 467 Mass. 336, 344 (2014). On review, we "determine whether the judge committed an abuse of that discretion or a significant error of law." Commonwealth v. DeJesus , 468 Mass. 174, 178 (2014).
It is undisputed that the immigration warning in this case referred to the immigration consequences of a guilty plea, not an admission to sufficient facts. The defendant claims the warning did not comply with G. L. c. 278, § 29D, because his pleas were an admissions to sufficient facts. We discern no abuse of discretion in the judge's conclusion that the defendant's pleas were guilty pleas and not admissions to sufficient facts. The record is clear that the defendant's tender of admissions to sufficient facts was rejected by the judge. The judge unambiguously informed the defendant that he would only accept a disposition that involved findings of guilty. After discussing the proposed disposition with his attorney, the defendant agreed to change his pleas of not guilty, knowing that the result would be findings of guilty. During the colloquy, the judge asked the defendant if "anyone threatened you in any way to get you to pleadguilty to this" (emphasis added). The defendant answered "no" without further inquiry. Neither the defendant, nor his counsel objected when the clerk recorded guilty pleas following the colloquy. At the sentencing hearing, neither the defendant nor defense counsel argued that the case should be continued without findings of guilt. We are satisfied, on the record before us, that the defendant knowingly tendered a guilty plea to each criminal charge. Because he was advised that a guilty plea could result in deportation, denial of naturalization, or exclusion from admission to the United States, there was no violation of G. L. c. 278, § 29D.
We also note that the criminal docket sheet reflects that the defendant pleaded guilty to each of the criminal charges. Although the docket sheet is a secondary source and is not conclusive as to what occurred at the plea hearing, see Commonwealth v. Hilaire , 437 Mass. 809, 818 n. 5 (2002), in this case it is consistent with the transcript of the change of plea hearing.
The defendant's argument that he did not plead guilty because he could not remember the criminal conduct is unavailing. It is well established that "a defendant need not admit his guilt to make a valid guilty plea." Commonwealth v. Nikas , 431 Mass. 453, 455 (2000), citing North Carolina v. Alford , 400 U.S. 25, 37 (1970) (Alford ). Here, the evidence against the defendant was strong. Indeed, the defendant acknowledged that it was overwhelming. After consulting with counsel, the defendant determined that, in light of the overwhelming evidence, it was in his interest to admit to the criminal conduct despite his memory lapse. This is the essence of a guilty plea pursuant to Alford , supra (defendant may knowingly and voluntarily consent to imposition of sentence even if he is unable to admit his participation).
Witnesses would have testified that the defendant was observed masturbating in a public park. When police found the defendant hiding nearby shortly thereafter, he resisted arrest.
In short, the judge did not abuse his discretion in concluding that the defendant entered guilty pleas and that he was adequately advised of the immigration consequences of those pleas pursuant to G. L. c. 278, § 29D.
Order denying motion to withdraw pleas affirmed .