Opinion
21-P-287
12-14-2021
COMMONWEALTH v. Avelino A. DEPINA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 1999, the defendant admitted to sufficient facts to warrant a finding of guilty on three counts of violating an abuse prevention order, in violation of G. L. c. 209A, § 7. In 2020, the defendant filed a motion to vacate his admission to sufficient facts claiming that he had not been given "alien warnings" as required by G. L. c. 278, § 29D. As to the charges at issue, the motion was denied without a hearing. The defendant appeals, arguing that the docket sheets produced by the Commonwealth are not sufficient to demonstrate that he was properly advised of enumerated immigration warnings as required by § 29D. We affirm.
At the time of the defendant's disposition in 1999, G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254, provided that the court "shall not accept a plea of guilty or nolo contendere" without advising the defendant that "[i]f [he is] not a citizen of the United States," his "conviction" may result in "deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States." While the statute as it existed then did not explicitly include "admission to sufficient facts" (see now G. L. c. 278, § 29D, as appearing in St. 2004, c. 225, § 1), our case law established that, for purposes of the statute, an admission to sufficient facts was the equivalent of a guilty plea, thus requiring the alien warnings. See Commonwealth v. Mahadeo, 397 Mass. 314, 317 (1986).
The motion was allowed as to a plea to larceny over $250, in violation of G. L. c. 266, § 30 ; that ruling is not before us.
Discussion. "A motion to vacate an admission to sufficient facts is treated as a motion for a new trial." Commonwealth v. Muniur M., 467 Mass. 1010, 1011 (2014). "Under Mass. R. Crim. P. 30 (b), [as appearing in 435 Mass. 1501 (2001)], a judge may grant a motion for a new trial any time it appears that justice may not have been done." Commonwealth v. Scott, 467 Mass. 336, 344 (2014). Given the passage of time, the judge who denied the defendant's motion was not the same judge who presided over the defendant's admission to sufficient facts. That judge is deceased. As a result, we are "in as good a position as the motion judge to assess the ... record." Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
At the time the defendant admitted to sufficient facts, G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254, required that a defendant be advised that a guilty plea may result in "deportation, exclusion from admission to the United States, or denial of naturalization." The statute also provided that "[a]bsent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement." Id. "Significantly, the statute does not require that the official record of the [change of] plea hearing be produced ... but only a record that the court provided the advisement.’ " Commonwealth v. Rzepphiewski, 431 Mass. 48, 52 (2000), quoting G. L. c. 278, § 29D, as then in effect. A reconstructed record of the change of plea hearing, which may include docket sheet entries and notations, satisfies the statutory requirement. See Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 351 (2009). See also Commonwealth v. McCants, 20 Mass. App. Ct. 294, 297 (1985) ("Docket entries are prima facie evidence of the facts recorded there").
Here, because twenty-one years had passed since the defendant admitted to sufficient facts, the record consisted only of the docket sheets, affidavits, and letters. The docket sheets showed a check mark in the box "[g]uilty [p]lea or [a]dmission to [s]ufficient [f]acts accepted after colloquy and 278 § 29D warning." The defendant argues that the check marks on the docket sheets, without any other evidence, are insufficient to meet the Commonwealth's burden to show that the defendant was provided all three immigration warnings enumerated in G. L. c. 278, § 29D. We disagree. "[D]ocket sheets are part of the court records and may be presented as prima facie evidence of the facts recorded therein." Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928, 929 (1999). See Rzepphiewski, 431 Mass. at 52-53, citing Podoprigora, supra ("the term ‘record’ in G. L. c. 278, § 29D, ... includes a docket sheet on which a box has been checked indicating that the deportation advisement was given").
We are not persuaded by the defendant's attempt to distinguish Podoprigora or Rzepphiewski. In Rzepphiewski, unlike here, the docket did not state that the § 29D warning had been given. 431 Mass. at 51. Instead, the court relied on the customary practice of the motion judge, who was also the plea judge, coupled with a more limited docket entry indicating that the defendant admitted to sufficient facts after a hearing. Id. at 54-55. In Podoprigora, 46 Mass. App. Ct. at 929, the court reached the conclusion quoted above, stating that "this case turns on whether the docket sheet qualifies as a ‘record’ within the meaning of G. L. c. 278, § 29D." Neither Podoprigora nor Rzepphiewski requires anything beyond a docket entry that indicates the required warnings were given.
The defendant's attempt to analogize his case to Commonwealth v. Marques, 84 Mass. App. Ct. 203 (2013), fails because in Marques there was evidence that the judge's immigration warnings did not comport with the language of the statute. See id. at 206. No such evidence exists here. The check marks on the docket sheets here were sufficient to meet the Commonwealth's burden to show that the defendant was provided the immigration warnings enumerated in G. L. c. 278, § 29D, see Podoprigora, 46 Mass. App. Ct. at 929-930, and there was no error or abuse of discretion in denying the defendant's motion.
The defendant's request for appellate attorney's fees and costs is denied.
So much of the February 4, 2021 order as denied the motion for new trial is affirmed.