Opinion
11-P-436
02-09-2012
COMMONWEALTH v. MARCIAL H. TEJADA.
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
On April 10, 1996, the defendant, Marcial H. Tejada, admitted to sufficient facts on a charge of assault and battery, in violation of G. L. c. 265, § 13A, and a guilty finding was entered. After he violated the terms of his probation twice, he eventually served two and one-half years in a house of correction. The disposition of this charge is therefore considered a conviction of an aggravated felony for purposes of Federal immigration law. See 8 U.S.C. § 1101(a)(43)(F) (2006); Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 295 n.4 (2001). Based on this conviction, the defendant was denied naturalization in 2006. In 2007, the defendant moved to withdraw his guilty plea based on the asserted lack of alien warnings required by G. L. c. 278, § 29D. He withdrew this motion in 2008. In 2010, the defendant again moved to withdraw his guilty plea, this time asserting ineffective assistance of plea counsel under Padilla v. Kentucky, 130 S. Ct. 1473 (2010). At the hearing on this motion, the motion judge ruled on the 2007 motion, not the 2010 motion. The judge allowed the 2007 motion, permitting the defendant to withdraw his plea.
The motion judge made no findings and gave no reasons for his decision, and denied the Commonwealth's motion for written findings and rulings.
The allowance of the 2007 motion must be reversed. The motion was not properly before the motion judge, having previously been withdrawn. Cf. Stolzoff v. Waste Sys. Intl., Inc., 58 Mass. App. Ct. 747, 766 (2003). Were we to consider the merits, the notation in the docket, 'Alien Warning Given,' would suffice to show that the defendant was advised of his alien rights. See Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928, 929-930 (1999). Given this notation and the presumption of regularity, the defendant failed to satisfy his burden of demonstrating his entitlement to relief. See Commonwealth v. Hason, 27 Mass. App. Ct. 840, 844-845 (1989); Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 636-638 (2001).
As the parties have also briefed the Padilla issue and in the interests of judicial economy, we have examined the defendant's 2010 motion and likewise find it to be without merit. The Supreme Judicial Court has held that Padilla is retroactive only to April 1, 1997, the effective date of a material change in immigration law. See Commonwealth v. Clarke, 460 Mass. 30, 41, 45 (2011). The defendant's plea occurred before that date.
Order allowing motion to withdraw guilty plea reversed.
By the Court (Rapoza, C.J., Kafker & Meade, JJ.),