Opinion
21-P-525
05-20-2022
COMMONWEALTH v. ANTONIO B. AMADO.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
On May 30, 2018, the defendant, who is a native and citizen of Cape Verde, pleaded guilty to assault by means of a dangerous weapon, in violation of G. L. c. 265, § 15B (b); carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a.); witness intimidation, in violation of G. L. c. 268, § 13B; carrying a loaded firearm without a license, in violation of G. L. c. 269, § 10 (n); and possession of ammunition without a firearm identification card, in violation of G. L. c. 269, § 10 (h) (1). The charges stemmed from an episode of domestic violence during which the defendant assaulted his former wife and her new boyfriend with a firearm. A District Court judge, after taking the guilty pleas (plea judge), sentenced the defendant to a jointly recommended term of eighteen months in the house of correction and two years of probation to be served upon the defendant's release from incarceration. During the plea colloquy the judge advised the defendant, "Sir, by pleading guilty, please understand that if you are not a citizen of this community, you can't [sic] and could inevitably and would inevitably be deported, excluded from admission or denied naturalization." The judge then asked the defendant, "Do you understand?" to which the defendant replied, "Yes."
During the plea negotiation the Commonwealth agreed to enter a nolle prosequi on an additional charge of possession of a large capacity firearm.
Upon completion of his sentence, the defendant was transferred to the custody of the United States Immigration and Customs Enforcement, and, on August 21, 2020, a judge ordered him deported to Cape Verde on the basis of his firearm conviction. About two months later, in October 2020, the defendant filed a motion for a new trial seeking to withdraw his guilty pleas on two grounds. First, the defendant maintained that the judge's immigration warning was untimely and failed to comply with the requirements of G. L. c. 278, § 29D. Second, the defendant asserted that his attorney failed to inform him of the immigration consequences of his pleas in violation of his constitutional right to effective assistance of counsel. The defendant's motion was heard by another judge (motion judge), who rejected the defendant's arguments, and denied the motion.
Discussion.
We first address the defendant's argument that the judge's immigration advisement was inadequate. "General Laws c. 278, § 29D, requires that, before accepting a guilty or nolo contendere plea, a judge advise the defendant:
'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'" (footnote omitted).Commonwealth v. Berthold, 441 Mass. 183, 184 (2004). "The purpose of this requirement is to ensure that defendants entering pleas are made aware of the potential for adverse immigration consequences." I_d. "The statute further provides that, if the judge fails to give the statutory warning and the defendant '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 . . . enter a plea of not guilty'" (emphasis added). Id. at 184-185, quoting G. L. c. 278, § 29D.
The critical issue here is whether the judge's advisement was comprehensible. Although the warning touched upon three potential immigration consequences, i.e., deportation, exclusion from admission, and denial of naturalization, it failed to advise the defendant that the consequences would apply if the defendant was not a citizen of the United States, and further failed to explain that the plea could result in exclusion from admission to the United States or denial of naturalization, pursuant to the laws of the United States.
It is not contested that the defendant has faced and will continue to face adverse immigration consequences.
The motion judge described the warning as "unconventional."
We acknowledge, as the Commonwealth argues, that a judge is not required to read the statutory language verbatim. See Commonwealth v. Hilaire, 437 Mass. 809, 819 (2002). However, the judge must, at the very least, use language that properly conveys the concept that the defendant's plea may result in deportation from the United States, exclusion from the United States, or denial of naturalization as a citizen of the United States. Given the inadequacy of the warning, we conclude that the judge's advisement was insufficient to make the defendant aware of the potential for adverse immigration consequences and, therefore, his motion to vacate his guilty pleas should have been allowed. See Commonwealth v. Petit-Homme, 482 Mass. 775, 788 (2019).
Given our conclusion, we need not address the defendant's remaining arguments concerning the timing of the warning and plea counsel's alleged ineffective assistance.
Accordingly, the order denying the defendant's motion to withdraw his pleas is reversed, and the matter is remanded for further proceedings consistent with this decision.
So ordered.
The panelists are listed in order of seniority.