Opinion
10-P-214
03-23-2012
COMMONWEALTH v. LACIDES ANGARITA.
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
In 1989, the defendant pleaded guilty to trafficking in cocaine, G. L. c. 94C, § 32E(b), and conspiracy to violate the controlled substance laws, G. L. c. 94C, § 40. In 2006, he moved to vacate his plea on the ground that the plea judge had failed to give the immigration warnings required by G. L. c. 278, § 29D. That motion was denied, as was the defendant's motion in 2010 to vacate his plea on the ground of ineffectiveness of counsel for failing to advise him of the immigration consequences of his plea. In this consolidated appeal, we review to determine whether the motion judge abused his discretion in denying the motions to vacate. Commonwealth v. Balliro, 437 Mass. 163, 166 (2002). We affirm. 1. The 2006 motion. General Laws c. 278, § 29D, inserted by St. 1978, c. 383, requires that the plea judge warn that a guilty plea 'may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization' before accepting a plea. Because the record did not show that the warnings had been given, the defendant was entitled to a presumption that the warnings had not been. Commonwealth v. Grannum, 457 Mass. 128, 133-134 (2010). The Commonwealth acknowledges that it cannot rebut this presumption. As the motion judge found, given that there is no recording, transcript, notes, or waiver form associated with the plea, there was no basis on which to conclude that the defendant received the required warnings.
Even where the warnings are not given, a defendant may withdraw his plea only if he shows that the 'plea and conviction may have or has had one of the enumerated consequences.' Id. at 134, quoting from G. L. c. 278, § 29D, inserted by St. 1978, c. 383. Those enumerated consequences are: deportation, exclusion from admission to the United States, or denial of naturalization. Ibid. 'The defendant bears the burden of demonstrating that he may face or is facing one of the enumerated consequences. 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). On the record before the motion judge, the defendant failed to meet this burden.
The record permitted the motion judge to find that the defendant was ordered, after hearing, to be deported by the Immigration and Naturalization Service (INS) in 1990. The deportation order was later vacated on appeal because the defendant had temporary resident status and could not be deported. The INS then terminated the defendant's temporary resident status. There was no evidence that in the decades since, the government has initiated or threatened any deportation action. In these circumstances, the motion judge did not abuse his discretion in concluding that the decades old deportation action by the INS, with no sign that the government might again seek to deport the defendant, does not entitle the defendant to withdraw his plea. See Commonwealth v. Grannum, 457 Mass. at 133-134.
'Denial of permanent residency status is not one of the three immigration consequences cited in the statute.' Commonwealth v. Cartagena, 71 Mass. App. Ct. 907, 908-909 (2008).
Contrary to the defendant's argument, it is not enough that he 'may' be deported or that he is 'deportable.' 'Where the defendant claims that he faces a risk of deportation, we construe the statute to require that relief be available only where the defendant shows either that the Federal government has taken some step toward deporting him or that its express written policy calls for the initiation of deportation proceedings against him.' Id. at 136. No such showing was made here.
If circumstances change in the future and he faces one of the statute's enumerated consequences, the defendant is free to file a new motion to withdraw his plea, Commonwealth v. Casimir, 68 Mass. App. Ct. 257, 259-260 (2007), and will be entitled to the presumption (which has already been established) that he was not properly advised of the immigration consequences by the plea judge.
2. The 2010 motion. Relying on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the defendant argues that he should have been permitted to withdraw his plea because his counsel was ineffective when he (counsel) failed to advise him (the defendant) of the immigration consequences of his plea. The Padilla rule applies, however, only to guilty pleas obtained after April 1, 1997. Commonwealth v. Clarke, 460 Mass. 30, 31 (2011). Because the defendant entered his plea in 1989, the rule of Padilla does not pertain to his case.
For these reasons, the orders denying the defendant's motions to vacate his plea are affirmed.
So ordered.
By the Court (Cypher, Cohen & Wolohojian, JJ.),