Opinion
No. 12–P–805.
2013-05-20
COMMONWEALTH v. Wesner BEAUVOIR.
By the Court (MEADE, MILKEY & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of a motion to withdraw his guilty pleas arguing that he was not afforded a sufficient warning of the potential immigration consequences. We affirm.
Background. On separate occasions in November, 2010, and February, 2011, the defendant pleaded guilty to various charges, including assault and battery by means of a dangerous weapon, assault and battery on a police officer, witness intimidation, and violation of a restraining order. A judge of the District Court held hearings on November 4, 2010, and February 16, 2011. At each hearing, after satisfying himself that the defendant was pleading guilty voluntarily and intelligently, the judge accepted the defendant's plea and then advised him of the potential immigration consequences of his plea.
See G.L. c. 278, § 29D. After the immigration warnings, the defendant acknowledged the judge's statements and the hearings progressed to disposition.
At the November, 2010, hearing, the following exchange occurred:
The court: “All right, sir, I find that your plea has been entered into knowingly, intelligently and voluntarily with full knowledge of its consequences and I accept it.... Now, I do have to advise you that in the event you're not a United States citizen, a disposition such as this could trigger collateral consequences such as deportation, exclusion from admission or denial of naturalization pursuant to federal law. Once you are released, you will have to come up to the probation department and sign terms and conditions of probation.”
The defendant: “Thank you.”
The court: “You're welcome, sir.”
The February, 2011, hearing progressed similarly:
The court: “Sir, I find that your plea has been made knowingly, intelligently and voluntarily with full knowledge of its consequences and I accept it.... [I]n consideration of your plea, the [c]ourt finds there are sufficient facts for the complaint to have issued and a sufficient basis for your plea and the [c]ourt imposes the sentence.... Do you have any questions for me at this time?”
The defendant: “No.”
The court: “All right, sir, I do have to advise you that a disposition such as this could trigger consequences such as deportation, exclusion from admission or denial of naturalization pursuant to federal law.”
The defendant: “Yes, sir.”
In November, 2011, the defendant moved to vacate his pleas, arguing that the immigration warnings given during the hearings were insufficient and that he was entitled to withdraw his pleas under G.L. c. 278, § 29D. The same judge who had accepted the pleas held a hearing on the motion and ultimately denied it, concluding that “the defendant was properly advised of and understood the possible consequences of his pleas.”
Discussion. The defendant claims the plea judge should have informed him of the immigration consequences earlier in the colloquy. Although there is a certain logic to the argument, because the defendant received the warnings and still elected to plead guilty, we conclude there was no error let alone a miscarriage of justice.
The warnings given were sufficient to inform the defendant of the “three specific consequences” that can arise from a guilty plea by a noncitizen. Commonwealth v. Hilaire, 437 Mass. 809, 814 (2002), quoting from Commonwealth v. Soto, 431 Mass. 340, 341 (2000). The defendant had an opportunity to respond to the court immediately after hearing the warnings, and did in fact give affirmative responses to both warnings. He also signed a tender sheet certifying that he understood the potential immigration consequences of his plea. The defendant was represented by counsel at the hearings, and she certified that she had in fact explained to the defendant the legal rights and consequences enumerated on the form. As the motion judge noted, “[a]t no time did either the defendant or his counsel object to, or otherwise seek to withdraw the defendant's plea after the court ... advised the defendant of the alien warnings despite having ample opportunity to do so.” Although these factors would not suffice to cure a judge's failure to provide the statutory warnings, see Commonwealth v. Hilaire, supra at 815–816, they do provide useful context for the defendant's responses to the court upon receiving the warnings at the hearings. On the facts of this case, we discern no error in the judge's conclusion that “the defendant was properly advised of and understood the possible consequences of his pleas [and] had a meaningful opportunity to respond to the alien warnings, object or withdraw his pleas,” and that the requirements of G.L. c. 278, § 29D, were therefore satisfied.
Order denying motion to withdraw guilty pleas affirmed.