Opinion
11-P-129
12-15-2011
COMMONWEALTH v. LUIS M. VARGAS.
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 1995, the defendant was charged by complaint with indecent assault and battery on a child under fourteen, in violation of G. L. c. 265, § 13B. On February 9, 1996, the defendant admitted to sufficient facts on the lesser included offense of assault and battery. On September 9, 2010, the defendant moved for a new trial to withdraw his guilty plea. The defendant appeals from the denial of that motion. We affirm.
1. Alien warning. The defendant claims that the motion for new trial should have been allowed because the plea judge did not give him the 'alien warning' required by G. L. c. 278, § 29D. We disagree. Due to the passage of time, there is no record of the 1996 plea colloquy, and the plea judge has died. In an effort to reconstruct the record, the Commonwealth supplied the motion judge with a signed tender of plea form, also known as the 'green sheet.' The motion judge found that the plea judge's indication on the green sheet that he accepted the plea to sufficient facts, 'after notice of the alien rights,' was the controlling document, notwithstanding the corresponding box on the docket sheet not being checked, an omission he deemed ministerial. We agree.
The motion judge expressly refused to accept both the defendant's and his attorney's bald assertion that he was not advised of the alien warning.
Pursuant to G. L. c. 278, § 29D, if a judge taking a guilty plea fails to give alien warnings and the defendant shows that his plea and conviction may have one of the enumerated consequences, the judge is required to permit the defendant to withdraw the plea. Indeed, unless there is a record that the warnings were provided, 'the defendant shall be presumed not to have received the required advisement.' Ibid., as appearing in St. 1996, c. 450, § 254. Here, the green sheet provides a sufficient record to overcome the presumption that the defendant did not receive the necessary warnings. See Commonwealth v. Rzepphiewski, 431 Mass. 48, 52-53 (2000); Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928, 929 (1999). '[T]he inclusion of the § 29D warnings as part of the judge's certification allows the judge to certify that those warnings, along with the other components of a standard colloquy, were in fact delivered as part of that colloquy 'addressed [to] the defendant in open court." Commonwealth v. Hilaire, 437 Mass. 809, 818 (2002). The wording of the green sheet 'itself contemplates that the § 29D warnings will be administered as part of the colloquy . . . .' Id. at 817. Here, the motion judge was free to accept the green sheet as a record of what the judge intended to do and did do many years earlier. See Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 351 n.6 (2009) (case law does not 'place any limitations upon the potentially reliable means of reconstituting a plea record'). Although the docket sheet does not confirm by a checked box that the alien warning was given, the motion judge was not required to draw a negative inference based on an absence of confirming evidence.
In Commonwealth v. Hilaire, 437 Mass. at 814, the Supreme Judicial Court held that the indication on the green sheet that the alien warning would be part of the colloquy could not cure the actual record of the colloquy, which failed to meet the statutory requirements. Here, however, no record exists other than the green sheet and the docket.
--------
2. Ineffective assistance. The defendant also claims that he received ineffective assistance of counsel because his attorney did not advise him regarding the immigration consequences of his guilty plea. In support of his claim, the defendant relies on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), where the United States Supreme Court held that defense counsel's failure to advise a client that a consequence of his guilty plea likely would be deportation constituted ineffective assistance of counsel. Id. at 1483. Although the Commonwealth argued that Padilla is a 'new rule' that cannot be applied retroactively on collateral review, the motion judge denied the claim on the merits. More recently, in Commonwealth v. Clarke, 460 Mass. 30, 41 (2011), the Supreme Judicial Court has decided that Padilla is not a 'new rule,' but that it will not be applied retroactively to convictions obtained before April 1, 1997, which is the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act. Ibid. Because the defendant admitted to sufficient facts on February 9, 1996, he is not entitled to relief, and the motion for new trial was properly denied.
Order denying motion for new trial affirmed.
By the Court (Grasso, Smith & Meade, JJ.),