DocketNumber: No. 06-P-420
Citation Numbers: 68 Mass. App. Ct. 257
Judges: Meade
Filed Date: 2/16/2007
Status: Precedential
Modified Date: 6/25/2022
Eighteen years after admitting to sufficient facts to warrant his conviction of possession of cocaine,
No record of the defendant’s 1986 plea colloquy exists, and the parties have made no effort to reconstruct it. Because the Commonwealth makes no argument that the presumption contained in G. L. c. 278, § 29D, does not apply,
In his motion to vacate his plea, the defendant claimed that as a consequence of his plea, he is prevented from becoming a lawful permanent resident and he is subject to removal from the United States. However, he offered no evidence to the motion judge that removal proceedings have been initiated against him or that he has been denied naturalization because of his narcotics conviction. Merely being “subject” to removal or that he “may” be denied citizenship is insufficient. See Commonwealth v. Rzepphiewski, 431 Mass. 48, 50 n.6 (2000) (insufficient basis to vacate plea where there was “no evidence in the record to suggest that this defendant has been taken into custody by the Federal Immigration and Naturalization Service [INS], is currently in deportation proceedings before the INS, or has even been notified by the INS that he is now subject to deportation”). As stated, the defendant posits a hypothetical or, at best, an eventuality, but not a circumstance that he actually, and currently, faces. See Commonwealth v. Barreiro, supra at 26.
Because there has been no showing that the defendant is actually facing any of the enumerated consequences that trigger the allowance of a motion to withdraw a guilty plea pursuant to G. L. c. 278, § 29D, i.e., deportation, exclusion from the United States, or the denial of naturalization, his claim is not ripe. Thus, it was error for the District Court judge to have allowed his motion. Finally, because it is possible that the defendant may, in the future, actually face one of the enumerated
The order allowing the defendant’s motion to vacate his guilty plea is reversed.
So ordered.
The defendant admitted to sufficient facts and was found guilty in the bench session under the trial de nova system in effect at the time and did not appeal to the jury session. An admission to sufficient facts in such circumstances is the functional equivalent of a guilty plea. Commonwealth v. Mahadeo, 397 Mass. 314, 316-317 (1986).
An alien who has been convicted of a controlled substance offense is “inadmissible” to the United States, see 8 U.S.C. § 1227(a)(2)(B)(i)(2000), which in turn makes the alien ineligible for permanent resident status, see U.S.C. § 1255(a) (2000), and ultimately disqualified from becoming a naturalized citizen. 8 U.S.C. § 1427(a)(2000).
Preceding the instant appeal, the Commonwealth sought relief from the allowed motion to vacate the plea from a single justice of the Supreme Judicial Court pursuant to G. L. c. 211, § 3. Because a motion to vacate or withdraw a guilty plea is properly treated as a motion for a new trial from which an appeal may be taken, see Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982); Smith, Criminal Practice and Procedure §§ 1250-1251 (2d ed. 1983 & Supp. 2006), the single justice denied the petition; that denial was affirmed on appeal to the full court. Commonwealth v. Casimir, 442 Mass. 1031 (2004). Less than a year following the allowance of the motion, a single justice of this court permitted the Commonwealth to notice a late appeal. See Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979).
Section 29D provides that in the absence of the official record of the plea, “the defendant shall be presumed not to have received [the] advisement.” G. L. c. 278, § 29D. The Commonwealth makes no claim that the presumptian of regularity, see Commonwealth v. Lopez, 426 Mass. 657, 664-665 (1998), affects either the presumption contained in G. L. c. 278, § 29D, or the