Opinion
No. 15–P–1365.
10-21-2016
COMMONWEALTH v. Diniz LOBODEPINA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
During a plea colloquy on December 13, 2013, the judge gave the defendant an immigration warning that enumerated the three potential immigration consequences of a guilty finding or a continuance without a finding. The defendant admitted to sufficient facts on charges of possession with intent to distribute heroin and possession with intent to distribute cocaine, and his case was continued without a finding for two years. Later facing deportation, the defendant moved to withdraw his plea and now appeals from the denial of that motion. We affirm.
The plea judge's full immigration warning stated: “And do you also understand that if you're not a citizen of the United States, a guilty finding or a continuance without a finding in these cases could affect your status in this country, that you could be subject to deportation from the United States, denied naturalization if you apply to become an American citizen, or excluded from admission to the United States.” The defendant responded, “Yes ma‘am.”
A motion to withdraw a guilty plea is reviewed under the same standard as a motion for a new trial: significant error of law or other abuse of discretion. See Commonwealth v. Furr, 454 Mass. 101, 106 (2009). The motion judge, who was also the plea judge, did not abuse her discretion in denying the motion as the remedy clause of G.L. c. 278, § 29D, was not triggered in this case. The defendant contends that if a judge fails to adhere precisely to the statutorily prescribed language of G.L. c. 278, § 29D, then the defendant is entitled to withdraw his plea even if the immigration warning contained therein is substantively correct. We disagree. The withdrawal of a guilty plea is authorized only when a defendant faces an immigration consequence of which he was entitled to be warned but was not warned. See Commonwealth v. Cartagena, 71 Mass.App.Ct. 907, 908 (2008).
The plea judge's immigration warning did not conform precisely to the language prescribed by G.L. c. 278, § 29D. The plea judge erred in referring to the disposition resulting from the defendant's admission to sufficient facts (a continuance without a finding) rather than the admission to sufficient facts itself. However, the error is without consequence because the deviation from the statutorily prescribed language did not omit any of the potential consequences the defendant might face by virtue of his plea. The entire purpose of the statute is to ensure that defendants are made aware of the potential adverse immigration consequences of entering a plea. See Commonwealth v. Valdez, 475 Mass 178, 182 (2016). The immigration warning in the present case correctly advised the defendant that a continuance without a finding, which is the disposition resulting from his admission to sufficient facts, could subject him to deportation.
The immigration warning as worded in the statute is: “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.” G.L. c. 278, § 29D, as appearing in St.2004, c. 225, § 1.
We conclude that, though the plea judge's warning did not conform precisely to the statute, the immigration warning advised the defendant in substance that the plea he entered could result in the immigration consequence he now faces. The defendant is therefore not entitled to relief under G.L. c. 278, § 29D.