Commonwealth v. Cortez

On December 1, 2004, the defendant tendered a plea in which he admitted to sufficient facts to support a charge of assault and battery by means of a dangerous weapon, and received a continuance without a finding (CWOF). 1 Approximately one month earlier, G. L. c. 278, § 29D, had been amended to require that defendants be specifically advised by the plea judge that an admission to sufficient facts may have adverse immigration consequences if the defendant is not a United States citizen. 2 Before that amendment, the statute referred only to pleas of guilty *790 or nolo contendere, and required that the judge advise the defendant only that a “conviction” might result in immigration consequences. See G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, §254.

In 2013, the defendant moved to vacate the judgment 3 and, in support of that motion, submitted an affidavit in which he attested that the plea judge did not inform him that an admission to sufficient facts and CWOF might result in the enumerated immigration consequences, but instead advised him only that a conviction might do so. 4 Given the passage of time, there is no transcript of the plea. 5 However, other contemporaneous evidence suggests that the new warning may not have been given. 6 Specifically, the judge’s signed certification on the “green sheet” states:

“I further certify that the defendant was informed and advised that if he or she is not a citizen of the United States, a conviction of the offense with which he or she was charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States” (emphasis supplied).

The defendant’s contemporaneous signed acknowledgement of alien warning (also on the green sheet) is to the same effect:

*791 “I understand that if I am not a citizen of the United States, conviction of this offense may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States” (emphasis supplied).

The Commonwealth, which has the burden of providing an “affirmative record that the required advisement was given,” presented no countervailing evidence in opposition to the motion to vacate. Commonwealth v. Mahadeo, 397 Mass. 314, 318 (1986). Nor did it put forward affirmative evidence to show the specific language of the immigration warning given by the judge was correct. Instead, at the hearing on the motion, the Commonwealth asked the motion judge (who had also been the plea judge) to draw upon his recollection of his customary practice at the time. The defendant pointed out that the green sheet signed by both the judge and the defendant tracked the pre-2004 language of § 29D. In response, the judge stated that, “regardless of what the green sheet said, this Court’s practice for years before that [2004] statutory change was to include both convictions and continuations without a finding in the language on my own accord because I was somewhat familiar with the change in immigration policy.” 7

In his written decision denying the motion, the judge found that it was his

“practice, although not required by statute, at the time in question to use language in the immigration warning to state expressly that this disposition could result in the 3 enumerated adverse consequences, not relying solely on the statutory reference to a ‘conviction.’ ” 8

*792 In essence, we are asked to decide whether the judge’s finding distinguishes this case from Commonwealth v. Marques, 84 Mass. App. Ct. 203 (2013). We conclude that it does. In Marques, there was no transcript of the plea and the contemporaneous green sheet indicated that the warning did not comply with the statutorily mandated language. There, the plea judge was not the motion judge, and the Commonwealth did not present any information concerning the plea judge’s customary practice. In those circumstances, we concluded that the plea judge’s contemporaneous certification on the green sheet should be taken at face value. Id. at 206.

Here, by contrast, the motion judge (who, as we have noted, was also the plea judge) made a specific finding that his customary practice was to give the correct statutory warning, even though his certification on the green sheet does not so indicate. Compare Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928, 930 (1999) (motion judge was also plea judge and recalled his standard practice; docket sheet indicated that alien warnings had been given). Although it would have been helpful had the judge explained or resolved the discrepancy, we can reasonably infer that he found that the preprinted language on the green sheet did not accurately reflect the actual language he used during the plea colloquy.

Order denying motion to withdraw guilty plea affirmed.