Opinion
11-P-3
02-14-2012
COMMONWEALTH v. JOGINDER SHARMA.
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 the orders of two judges of the District Court denying his motions to withdraw his guilty pleas on charges of operating an automobile under the influence of intoxicating liquor; the first time in 1994 and the second time in 1996. He argues that he is entitled to withdraw his guilty pleas because he did not receive immigration warnings as required by G. L. c. 278, § 29D, before pleading guilty in either matter, and that no record exists indicating that such warnings were given. The Commonwealth concedes, as it must, that the statute creates a presumption that the defendant did not receive the warnings, and that it cannot overcome that presumption. However, it also contends that the defendant is not entitled to withdraw his guilty pleas because, on the record before us, he has not met his burden of demonstrating more than a hypothetical possibility of denial of naturalization.
In each case the defendant tendered an admission to facts sufficient for a finding of guilty on a criminal charge of driving under the influence of alcohol.
Effectively, the defendant's motions are motions for a new trial. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001); Commonwealth v. Furr, 454 Mass. 101, 106 (2009).
The circumstances of this case are controlled in material respects by settled principles. See, e.g., Commonwealth v. Grannum, 457 Mass. 128 (2010). See also Commonwealth v. Casimir, 68 Mass. App. Ct. 257 (2007).
In order to be entitled to withdraw his admission due to the absence of immigration warnings, the defendant must show that 'his plea and conviction may have one of the enumerated consequences' set forth in the immigration warnings: 'deportation, exclusion from admission to the United States, or denial of naturalization.' G. L. c. 278, § 29D, as in effect prior to 2004. See St. 2004, c. 225, § 2. The defendant bears the burden of demonstrating that he may face or is facing one of the enumerated consequences. See Commonwealth v. Berthold, 441 Mass. 183, 185 (2004). The Supreme Judicial Court, in interpreting the words of the statute, has determined that in order 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. The defendant must demonstrate also that the immigration consequences he may face or is facing were caused by the guilty pleas he now seeks to nullify. See Commonwealth v. Pryce, 429 Mass. 556, 559 (1999). In this case, the defendant has not met this burden.
In his motion to set aside the guilty pleas, the defendant stated that he intended to apply to become a naturalized United States citizen if the convictions at issue would not doom his application. In addition, he filed an affidavit from a lawyer who practices immigration law in Northampton averring that, in his opinion, two operating under the influence of alcohol convictions could be enough to establish lack of moral character and lead to denial of naturalization pursuant to 8 U.S.C. § 1427(a)(3) (2006). The defendant claims that the fact that these two convictions subject him to denial of a potential future application for citizenship is sufficient to establish that the immigration consequence he fears is more than hypothetical.
Where, as here, denial of his application for citizenship is the only enumerated consequence the defendant attests he may suffer, the defendant must show more than that the challenged convictions may hypothetically form a statutory basis for that consequence. See Commonwealth v. Rzepphiewski, 431 Mass. 48, 50 n.6 (2000); Commonwealth v. Casimir, 68 Mass. App. Ct. at 259. The attorney's letter on which the defendant relies does not establish that the defendant has been notified by Federal immigration authorities that, as a result of the challenged convictions, the express written policy of the Federal immigration authorities calls for the denial of his potential application for citizenship. See Commonwealth v. Grannum, 457 Mass. at 136. The mere possibility of denial of naturalization is not a sufficient basis for relief under G. L. c. 278, § 29D.
This case is unlike Commonwealth v. Rodriquez, 70 Mass. App. Ct. 721 (2007), where the defendant's motion to withdraw her guilty plea was allowed on the ground that she had not been given sufficient warning of the effects of her plea on her immigration rights. There, the defendant had been ordered deported by an immigration court, and was facing automatic denial of readmission because of the earlier deportation. Moreover, the felony to which she had pleaded guilty was one as to which immigration judges had no discretion to grant relief to the defendant. Thus, assuming one may obtain statutory relief without first being denied naturalization, the defendant in this case has provided insufficient evidence of a likelihood that his naturalization will be denied on the basis of the convictions at issue here.
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Orders denying rule 30(b) motions affirmed.
By the Court (Graham, Rubin & Milkey, JJ.),