Opinion
14-P-27
10-27-2014
COMMONWEALTH v. BRUNO B. BRITO.
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 an order denying his motion to withdraw his guilty plea on the ground that the plea judge failed to provide the immigration warnings set forth in G. L. c. 278, § 29D. We vacate the order denying the defendant's motion and remand to the District Court for further proceedings consistent with this memorandum and order.
1. Background. The parties do not dispute that the defendant pleaded guilty to receiving a stolen motor vehicle in 2001 before the plea judge, and that in October, 2012, he received a notice that he was subject to removal proceedings (deportation) based, in part, on his 2001 conviction.
Upon receiving the deportation notice, the defendant moved to withdraw his guilty plea on the ground that the plea judge failed to advise him in accordance with G. L. c. 278, § 29D. In his supporting affidavit, the defendant averred that the plea judge did not provide him with the statutory immigration warnings, and that had the judge done so, he would not have pleaded guilty.
At the hearing on the defendant's motion, defense counsel asserted that absent a record that immigration warnings had been given, the statutory presumption applied and entitled the defendant to withdraw his guilty plea. The motion judge remarked that he knew the plea judge to be "a stickler for this type of procedural requirement" who "[a]s long as [he had] worked with [the plea judge] . . . would always provide this warning." The motion judge probed defense counsel's claim that the record contained no evidence that the warnings had been given, and inquired whether plea counsel had provided an affidavit regarding administration of the required warnings.
As in effect at the time of the defendant's plea, the statute provided in pertinent part:
"The court shall not accept a plea of guilty . . . from any defendant in any criminal proceeding unless the court advises [him] . . . [']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. . . .'
"If the court fails so to advise the defendant, and he 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 withdraw the plea of guilty . . . , and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement." G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254.
The parties do not dispute that the court file is missing, and that the only court record of the case is the docket sheet.
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The motion judge then inquired of the Commonwealth. The prosecutor acknowledged that the court file was missing, the docket sheet did not reflect the immigration warnings, the district attorney's office had destroyed its file, and "in this unfortunate circumstance," the Commonwealth had "no way of proving" that immigration warnings had been given so as to meet its burden.
The judge expressed disagreement with the prosecutor's assessment, noting that "the burden after this many years is on the defendant." The judge was particularly troubled by the fact that he worked with the plea judge and had appeared before him as a lawyer, and "never once was aware of a single instance in which he did not afford a defendant . . . his immigration warnings." The judge took the matter under advisement. Subsequently, he ruled: "After hearing and upon review of submissions and currently available court records, defendant's motion to vacate plea is denied."
2. Discussion. The motion judge erred in denying the defendant's motion to vacate his guilty plea. The "explicit language of the statute unambiguously manifests a legislative intent to place on the Commonwealth the burden of proving that the requirements of G. L. c. 278, § 29D, have been satisfied, irrespective of the amount of time that may have passed between a conviction and a defendant's motion to withdraw his plea." Commonwealth v. Jones, 417 Mass. 661, 664 (1994). A motion to withdraw a guilty plea for failure to provide the statutory immigration warnings is "different in kind" from other motions brought under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), and the presumption of regularity that ordinarily applies to plea proceedings does not obtain in the context of a challenge to the absence of immigration warnings. Commonwealth v. Grannum, 457 Mass. 128, 133 (2010).
Here, nothing in the record establishes that the plea judge provided the defendant the required immigration warnings. The court's case file is missing, the docket is silent, and there is no testimony or affidavit from individuals with knowledge of the plea proceeding from which the record may be reconstructed. We are unpersuaded by the Commonwealth's present contention that the motion judge's personal knowledge and experience with the plea judge, both as an attorney and as a judicial colleague, serves to reconstruct the record. Contrast Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 351-352 (2009) (plea judge's statement of his customary practice concerning immigration warnings at time of disputed proceedings may serve to reconstruct record); Commonwealth v. Haskell, 76 Mass. App. Ct. 284, 291-293 (2010) (same). Such a method of reconstruction fails for the reason, if no other, that the motion judge would not be taking judicial notice of his own customary practices in a plea colloquy, or crediting the testimony or affidavits of percipient witnesses (including the retired plea judge) as to the plea judge's customary practices. See Diaz, supra at 352 (statement of customary practices must include information "that the plea judge customarily administered the advisement," "the customary practice had begun on or about the designated date and continued in effect through the hearing in question," the advisement included all three statutory warnings, and "the judge delivered the advisement to all defendants offering pleas"). Rather, the motion judge would be putting himself in the improper position of serving as both a witness and a judge of witness credibility in the same proceeding.
We vacate the order denying the defendant's motion to withdraw his guilty plea and remand the case to the District Court for further proceedings consistent with this memorandum and order. Upon request, the Commonwealth is to be afforded the opportunity to reconstruct the record.
So ordered.
By the Court (Grasso,
Kantrowitz & Meade, JJ.),
Clerk Entered: October 27, 2014.
In 2004, the statute was amended in ways not affecting this case.