Commonwealth v. Villalobos

Sosman, J.

After denying the defendant’s motion to withdraw his admission to sufficient facts and for a new trial, a judge in the District Court reported the following question to the Appeals Court: “Whether, in light of the 1996 amendment to 8 U.S.C. [§] 1101(a)(48)(A) which treats an ‘admission to sufficient facts’ as equivalent to a conviction for immigration purposes, a criminal defendant who offers an ‘admission to sufficient facts’ and receives a ‘continuance without a finding’ may withdraw the admission on the grounds that immigration warnings which tracked G. L. c. 278, [§] 29D did not inform Defendant that his admission to sufficient facts and receipt of a continuance without a finding could lead to his deportation or denial of naturalization.” The Appeals Court, in a rescript opinion, answered the reported question in the negative. See Commonwealth v. Villalobos, 52 Mass. App. Ct. 903, 904 (2001). We granted the defendant’s application for further appellate review, and we answer the question in the negative.

1. Facts. The defendant, bom in Pern, is a permanent resident alien living in Cambridge, and is presently applying for United States citizenship. On May 30, 1997, the defendant was charged with violation of an abuse prevention order. G. L. c. 209A, § 7. On October 9, 1997, he admitted to sufficient facts to warrant a finding of guilty and received a disposition (to which he had agreed) of a continuance without a finding for one year, with the charge then to be dismissed if the defendant successfully completed a counselling program and obeyed any restraining orders in effect. G. L. c. 278, § 18. As part of the colloquy conducted by a judge in the Cambridge District Court, the defendant was advised of the potential immigration consequences of a “conviction,” consistent with the requirements of G. L. c. 278, § 29D.¹

On September 18, 1998, shortly before the expiration of the one-year continuance period, the defendant moved to withdraw his admission to sufficient facts. In support of his motion, he submitted an affidavit stating that, although he had been warned about the immigration consequences of a “conviction,” he had not been advised at the time of his admission that the dispositian he received (a continuance without a finding followed by dismissal) could be treated as a “conviction” for immigration purposes and thus jeopardize his pending application for citizenship. He claimed that hád he been so informed, he would not have made the admission, but instead would have asserted his right to a trial. While that motion was still pending, the defendant reached the one-year anniversary of the continuance without a finding. As there had been no violation of the terms of his continuance during that year, the charge against the defendant was dismissed on October 9, 1998.

On November 10, 1998, the judge denied the defendant’s motion to withdraw admission, reasoning that the absence of information concerning the specific application of immigration law to the defendant’s continuance without a finding did not undermine the knowing, intelligent, and voluntary waiver the defendant had made, and that his counsel’s alleged failure to fully advise him of immigration consequences did not constitute ineffective assistance of counsel. However, recognizing that the language of the immigration warnings specified in G. L. c. 278, § 29D, may provide an inadequate warning in light of changes in Federal immigration law, and that that discrepancy “has implications for many plea colloquies,” the judge reported the question to the Appeals Court.

2. Discussion, a. Mootness. The Commonwealth protests that the reported question is not properly before the court because the dismissal of criminal charges rendered moot any defect in the underlying proceedings. See Burns v. Commonwealth, 430 Mass. 444, 445-447 (1999); Delaney v. Commonwealth, 415 Mass. 490, 492 (1993). The Commonwealth also argues that a dismissed case cannot be reported pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1978). See Commonwealth v. Hampe, 419 Mass. 514, 515 n.1 (1995).

As the Appeals Court noted, “ [consideration of the case is complicated by thorny procedural problems.” Commonwealth v. Villalobos, supra at 904. We agree with the Appeals Court, however, that the reported question should be answered “because the defendant raised the issue timely, [and] he should not be penalized because the charge was perfunctorily dismissed prior to the judge’s decision on the motion, especially where, as here, there remain genuine and serious collateral consequences.” Id., citing Frizado v. Frizado, 420 Mass. 592, 594 & n.2 (1995), and Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998). Notwithstanding the dismissal, the defendant’s admission may expose him to unfavorable immigration consequences, and G. L. c. 278, § 29D, allows a defendant to file a motion “at any time” precisely so that a defendant may seek to avoid those consequences. In light of the unique purpose of that statute, and its provision of a remedy “at any time,” the dismissal of the charge did not render the question moot.²

b. Alien warning. General Laws c. 278, § 29D, provides: “The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court advises such defendant of the following: ‘If you are not a citizen of the United States, you are hereby advised 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, pursuant to the laws of the United States.’ ” The statute also specifies the relief to be accorded to a defendant who does not receive the required warnings: “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 or nolo contendere, and enter a plea of not guilty.” G. L. c. 278, § 29D.

While the statute as worded applies only to “a plea of guilty or nolo contendere,” id., we have long held that it also applies to a defendant’s admission to sufficient facts to warrant a finding of guilty. See Commonwealth v. Rzepphiewski, 431 Mass. 48, 50 n.3 (2000); Commonwealth v. Jones, 417 Mass. 661, 662-663 (1994); Commonwealth v. Mahadeo, 397 Mass. 314, 316-317 (1986). We did so because such admissions are, in many respects, “the functional equivalent of a guilty plea.” Id. at 316. See Commonwealth v. Duquette, 386 Mass. 834, 844-846 (1982). While that characterization of an admission to sufficient facts was initially premised on the prior procedures of the two-tier District Court system,³ it remains accurate under current practice. Pursuant to G. L. c. 278, § 18, a defendant may tender “an admission of facts sufficient for finding of guilt,” and “such admission shall be deemed a tender of a plea of guilty for purposes of the procedures set forth in this section.” Those procedures include the procedure utilized here, namely, a continuance without a finding to a specific date, conditioned on compliance with specific terms, at which time the charge will be dismissed. See Commonwealth v. Pyles, 423 Mass. 717, 721-723 (1996). However, in the event of a violation of those conditions, the “admission” remains and may ripen into an adjudication of guilt and imposition of sentence. See Commonwealth v. Tim T., ante 592, 596 (2002); Bums v. Commonwealth, supra at 446; Mass. R. Crim. P. 28 (b), 378 Mass. 898 (1979). Thus, where an admission to sufficient facts may lead to either an immediate conviction and sentence, or may do so during the continuance period in the event of a violation of the continuance terms, it remains appropriate to treat an admission to sufficient facts as the equivalent of a plea of guilty for purposes of G. L. c. 278, § 29D.

Here, the defendant does not contend that the judge failed to provide him with the warnings required by G. L. c. 278, § 29D. Nor does he suggest that the warnings he received during his colloquy deviated in any substantive respect from the wording specified in the statute. Rather, the defendant argues that the terms of the alien warning prescribed by the Legislature are “actively misleading” when given to defendants who admit to sufficient facts in conjunction with a continuance without a finding, because the warnings speak only of the immigration consequences of a “conviction.” As worded, the warnings at least imply that a disposition short of “conviction” — i.e., a continuance without a finding leading to the ultimate dismissal of the charge — does not carry similar consequences.

An admission to sufficient facts followed by a continuance without a finding is not a “conviction” under Massachusetts law. See Commonwealth v. Jackson, 45 Mass. App. Ct. 666, 670 (1998) (admission to sufficient facts followed by continuance without finding is not “conviction” for purposes of statute allowing impeachment by prior convictions). Indeed, one of the purposes underlying the disposition of continuance without a finding is to allow a deserving defendant to “avoid[] the consequences of having a criminal conviction.” Commonwealth v. Pyles, supra at 722 n.7, quoting Commonwealth v. Duquette, 386 Mass. 834, 843 (1982). At the time that G. L. c. 278, § 29D, was enacted by St. 1978, c. 383, Federal immigration law looked to State law for purposes of determining whether an alien had a “conviction” of a crime. See Matter of L R, 8 I. & N. Dec. 269, 270 (BIA 1959). Thus, an admission to sufficient facts in order to obtain a continuance without a finding did not, absent a violation of the continuance terms, result in a “conviction” for Federal immigration purposes.

However, in 1988, the board of immigration appeals held that an alien acquired a “conviction” for immigration purposes whenever the alien “admitted sufficient facts to warrant a finding of guilty,” the judge imposed “some form of punishment, penalty, or restraint on the person’s liberty,” and an adjudication of guilt could be entered in the event of violation of the court’s terms “without availability of further proceedings regarding the person’s guilt or innocence of the original charge.” Matter of Ozkok, 19 I. & N. Dec. 546, 551-552 (BIA 1988). See Yanez-Popp v. United States Immigration & Naturalization Serv., 998 F.2d 231, 234-236 (4th Cir. 1993); Molina v. Immigration & Naturalization Serv., 981 F.2d 14, 18 (1st Cir. 1992). In 1996, Congress amended the Immigration and Nationality Act to add a definition of “conviction” for purposes of immigration proceedings:

“The term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where —

“(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

“(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.”

8 U.S.C. § 1101(a)(48)(A) (2000). As a result of these changes to Federal immigration law, an admission to sufficient facts followed by a continuance without a finding now constitutes a “conviction” whenever the terms of the continuance include any “restraint on the alien’s liberty,”⁴ notwithstanding the fact that the underlying charge has been or will be dismissed. Id. See Moosa v. Immigration & Naturalization Serv., 171 F.3d 994, 1001-1002 (5th Cir. 1999).

Given this difference between State law and Federal immigration law, and a lay person’s likely perception that a continuance and “dismissal” of a charge is not a “conviction” of that charge, the defendant contends that the alien warnings in G. L. c. 278, § 29D, are “actually worse than no notice at all.” They are misleading; they give an alien making such an admission a false sense of comfort; and, if anything, they reinforce the erroneous belief that an admission to sufficient facts in order to obtain a continuance and ultimate dismissal is in the alien’s best interest because it will avoid the very thing — a “conviction” — that may have such devastating immigration consequences.

We agree that, under current immigration law, the warning specified by the statute is inadequate, and even potentially misleading. However, we are bound by the terms of the statute. The Legislature has prescribed the warnings that are to be given, and if the Legislature’s precisely worded warnings have failed to keep pace with changes in immigration law, it is for the Legislature to update those warnings. “We are not free to ignore or to tamper with that clear expression of legislative intent. If the law is to be changed, the change can only be made by the Legislature.” Commonwealth v. Jones, 417 Mass. 661, 664 (1994). While nothing in the statute prevents judges from taking steps to avoid any misunderstanding as to the consequences of an admission to sufficient facts followed by a continuance without a finding (i.e., by telling defendants receiving that disposition that immigration authorities may treat their admission to sufficient facts as a “conviction” notwithstanding the later dismissal of the charge), judges are not required to expand on the warnings prescribed by the Legislature. Here, the judge conducting the defendant’s colloquy gave the warnings required by the Legislature. Where the judge did so, the defendant may not avail himself of the remedy the Legislature prescribed for any failure to give those statutory warnings. G. L. c. 278, § 29D.

The immigration consequences resulting from disposition of a criminal charge are “collateral and contingent consequences of a plea, and, but for G. L. c. 278, § 29D, . . . there would be no obligation on a judge to warn or inform the defendant of such consequences in order to render the plea a voluntary and intelligent one.” Commonwealth v. Hason, 27 Mass. App. Ct. 840, 843 (1989), citing Commonwealth v. MacNeil, 23 Mass. App. Ct. 1022, 1024 (1987). See Commonwealth v. Medeiros, 48 Mass. App. Ct. 374, 375-376 (1999). See also Commonwealth v. Quispe, 433 Mass. 508, 513 (2001). Thus, the judge’s failure to provide advice beyond that specified in the statute does not serve to undermine the knowing and voluntary nature of the defendant’s admission to sufficient facts.

While there is merit to the defendant’s argument that the statutory form of the immigration warnings could literally be misleading in a manner that would pressure a defendant to admit to sufficient facts in order to avoid the immigration consequences of a “conviction,” he does not claim that the use of that language during his colloquy was the source of any such misunderstanding on his part. Nor does he contend that the colloquy pressured him to admit to sufficient facts and accept the continuance without a finding in lieu of trial. Instead, his affidavit claims only that the court and his attorney advised him that a “conviction” would have adverse immigration consequences, and that “[h]ad [he] been informed of the adverse immigration ramifications of [his] admission and continuance without a finding, [he] unquestionably would have exercised [his] constitutional right to a trial.” Such an argument merely invokes what has long been recognized as a collateral consequence of a plea. See Commonwealth v. Medeiros, supra; Commonwealth v. Hason, supra; Commonwealth v. MacNeil, supra. See also Commonwealth v. Quispe, supra. A defendant’s regret, in hindsight, that he was not made aware of that collateral consequence at the time of his plea does not suffice to vacate his plea of guilt or admission to sufficient facts.

As the Appeals Court recognized, “[difficulties such as those presented here will continue to arise so long as the immigration warnings required by our State statute do not encompass changes in Federal immigration law.” Commonwealth v. Villalobos, 52 Mass. App. Ct. 903, 904-905 (2001). In their current form, the warnings prescribed by the Legislature can be misinterpreted to advise a defendant that admission to sufficient facts in order to obtain a continuance without a finding is the way to avoid a “conviction” and thereby avoid adverse immigration consequences. Given that the entire purpose of the statute is to see to it that defendants are made aware of the potential for adverse immigration consequences, it would be a perversion of that purpose to allow the warnings to become instead a false assurance that there will be no such consequences from an admission, continuance without a finding, and dismissal. At least in theory, and perhaps for some defendants in reality, such false assurances could pressure a defendant to admit to sufficient facts for the express but mistaken purpose of avoiding immigration consequences. While such a defendant could not invoke the automatic remedy provided by the statute, we cannot rule out the possibility that such false information might detract from the knowing and voluntary nature of a defendant’s admission to sufficient facts. Judges are not required to provide a defendant with advice concerning the application of immigration law to that defendant’s particular situation. However, where an admission to sufficient facts is the predicate to a continuance without a finding, we recommend that judges provide a slight amplification to the statutory warnings to avoid any potential for misleading such a defendant.⁵

We therefore answer the reported question, “No.”

1 Although the immigration warnings given by the judge were not a verbatim recitation of the statute, the defendant does not contend that there was any substantive deviation or omission from the warnings prescribed by the statute. See Commonwealth v. Soto, 431 Mass. 340, 342 (2000).

2 We further agree with the motion judge that this issue potentially affects many colloquies. Even if the present case were moot, it would still be appropriate for us to answer the reported question. See Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000); Attorney Gen. v. Commissioner of Ins., 403 Mass. 370, 380 (1988).

3 In Commonwealth v. Mahadeo, 397 Mass. 314, 315 (1986), the defendant had waived his right to a first-instance jury trial, admitted to sufficient facts to warrant a finding of guilty, and then not pursued an appeal for a trial de nova. While an admission to sufficient facts under that system still left a defendant with a right of appeal for a trial de nova, the failure to pursue that appeal transformed the prior admission into “the functional equivalent of a guilty plea.” Id. at 316. Similarly, in Commonwealth v. Jones, 417 Mass. 661, 662 (1994), we reasoned that the defendant’s admission to sufficient facts accompanied by his express waiver of his right to trial de nova entitled the defendant to receive the immigration warnings provided by G. L. c. 278, § 29D. The system of trial de nova was abolished effective January 1, 1994. St. 1992, c. 379, §§ 193, 226, as amended by St. 1993, c. 12, § 9.

4 The defendant cites to no authority indicating whether the requirement that he attend a particular counselling program and that he obey any existing protective orders would constitute a “restraint on [his] liberty” within the meaning of 8 U.S.C. § 1101(a)(48)(A)(ii). The Commonwealth does not contest the point, and we therefore assume that the disposition of the defendant’s case could be treated as a “conviction” that “may” result in a denial of his application to become a naturalized citizen. G. L. c. 278, § 29D.

5 The following addition to the prescribed statutory warning should suffice: “If you are not a citizen of the' United States, you are hereby advised that conviction of the offense for which you have been charged, or your admission to sufficient facts to warrant a finding of guilty 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, pursuant to the laws of the United States.”