Opinion
10-P-1093
11-21-2011
COMMONWEALTH v. JOSE FAMILIA. [FN1]
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a Superior Court judge's order denying his renewed motion to withdraw a guilty plea and for a new trial. He argues that the motion judge erred in finding that the issues not raised in the first motion to withdraw plea and for a new trial are waived, and that the renewed motion should not have been decided without an evidentiary hearing. We affirm.
Background. The facts of this case are somewhat unusual. The defendant emigrated to the United States from his native Dominican Republic in February, 1989. He was arrested approximately three months later and indicted for trafficking in cocaine and conspiracy to violate the drug laws. On October 11, 1989, the defendant pleaded guilty to possession of a Class B controlled substance with intent to distribute, in violation of G. L. c. 94C. At the change of plea hearing, the judge asked the defendant if he was a citizen of the United States. After receiving a negative response, the judge stated: 'You understand, don't you, that if you plead guilty to this indictment you could be deported?' The defendant answered, 'Yes, sir.' Before the colloquy ended, the judge again advised the defendant that his plea could result in deportation. The defendant was sentenced to two years in the house of correction, with 159 days of credit for time served.
On April 17, 1990, the Immigration and Naturalization Service (INS) lodged a detainer against the defendant. He escaped from custody the next day. In March, 2005, Domingo Martinez was arrested in New York City for driving while impaired by alcohol. Through fingerprints, the Suffolk County sheriff's office was able to determine that Domingo Martinez and the defendant are the same person. The defendant was returned to custody on May 2, 2008, and on August 26, 2008, he pleaded guilty to escape.
In February, 2009, the INS issued to the defendant a notice to appear and a charging document related to the 1989 drug offense. In April, 2009, the defendant filed a motion in the Superior Court to vacate his plea of guilty to possession of a Class B substance with intent to distribute on the basis that he was not informed of the plea's effect on his immigration status. The INS conducted removal proceedings in May and June, 2009, and the defendant was ordered removed on June 24, 2009. The motion to vacate plea was denied on October 21, 2009. On March 18, 2010, the defendant filed a renewed motion to withdraw his plea and for a new trial. The renewed motion was based upon the plea colloquy's alleged failure to comport with G. L. c. 278, § 29D, and plea counsel's alleged ineffective assistance. On May 17, 2010, the motion was denied by the same judge who had denied the first motion.
2 The motion judge stated, 'Because the trial judge warned the defendant that he faced the consequence of deportation, see Commonwealth v. Berthold, 441 Mass. 183, 184 (2004), and the defendant has been convicted of an unrelated deportable offense, see Commonwealth v. DeSorbo, 49 Mass. App. Ct. 910, 911 [2000], the defendant is not entitled to withdraw his guilty plea.'
3 The judge found 'that the defendant waived the issues not raised in the initial Motion to Withdraw Plea.' He noted that the defendant 'did not bother to obtain a transcript and did not argue ineffective assistance the first time around.' As to the ineffective assistance claim, he noted the lack of any affidavit from plea counsel. The judge also noted that the defendant had not shown that he faces adverse immigration consequences, and that he had been warned of the possibility of deportation.
Discussion. Section 29D of G. L. c. 278, as in effect in 1989, when the defendant tendered his plea on the drug charge, required a judge, in accepting a guilty plea from a defendant who is not a United States citizen, to advise that such plea 'may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization.' G. L. c. 278, § 29D, inserted by St. 1978, c. 383. For pleas tendered (as here) prior to October 27, 2004, § 29D provided, 'If 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, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty.' G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254.
4 In 2004, § 29D was further amended by, inter alia, adding after 'may have' the words 'or has had,' and by adding after 'enumerated consequences,' the phrase 'even if the defendant has already been deported from the United States.' However, the application of the new language was restricted to pleas tendered on or after the effective date of the statute, October 27, 2004. See St. 2004, c. 225, §§ 1, 2.
A defendant seeking to withdraw his plea on the basis that he did not receive proper warnings 'bears the burden of demonstrating that he may face or is facing one of the enumerated consequences.' Commonwealth v. Grannum, 457 Mass. 128, 134 (2010). 'To meet this burden, the defendant must show 'more than a hypothetical risk of such a consequence, but that he actually faces the prospect of its occurring." Ibid., quoting from Commonwealth v. Berthold, 441 Mass. 183, 185 (2004).
In essence, the defendant acknowledges that he was warned of the consequence of deportation, but argues now that he is facing the consequences of which he was not warned, i.e., exclusion from admission to the United States and denial of naturalization. At present, however, these consequences remain hypothetical, and thus the claim is not ripe. See Commonwealth v. Agbogun, 58 Mass. App. Ct. 206, 207 (2003); Commonwealth v. Casimir, 68 Mass. App. Ct. 257, 259 (2007) ('the defendant posits a hypothetical or, at best, an eventuality, but not a circumstance that he actually, and currently, faces').
5 Insofar as the defendant argues that he received ineffective assistance of plea counsel, '[i]n light of our determination that the defendant is not entitled to withdraw his guilty plea for failure to warn of the immigration consequence of [exclusion from admission and] denial of naturalization, it cannot be said that 'better work might have accomplished something material for the defense." Commonwealth v. Cartagena, 71 Mass. App. Ct. 907, 909 (2008), quoting from Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
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Order denying renewed motion to withdraw guilty plea affirmed.
By the Court (Trainor, Brown & Carhart, JJ.),