Commonwealth v. Valdez , 88 Mass. App. Ct. 332 ( 2015 )

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14-P-668 Appeals Court
COMMONWEALTH vs. FRANK VALDEZ.1
No. 14-P-668.
Middlesex. February 3, 2015. - September 14, 2015.
Present: Cypher, Hanlon, & Agnes, JJ.
Practice, Criminal, Plea, Presumptions and burden of proof.
Alien.
Indictment found and returned in the Superior Court
Department on September 20, 1988.
A motion to withdraw a guilty plea, filed on November 4,
2013, was considered by Kathe M. Tuttman, J., and a motion for
reconsideration was also considered by her.
Scott W. Kramer for the defendant.
Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.
HANLON, J. The defendant appeals from the orders denying
his motions to vacate a 1989 guilty plea, and for
reconsideration. He argues that his plea was invalid because
the plea judge failed to advise him, as required by G. L.
1
Also known as Franklin Falcone.
2
c. 278, § 29D, of all the possible immigration consequences from
such a plea -- including, particularly, the possibility of
exclusion from admission if he left the United States and
attempted to return. We recognize that, on this record, the
Commonwealth is unable to prove that the defendant received the
required warning. However, because the defendant has not been
excluded from the United States, and the United States
Immigration and Customs Enforcement (ICE) has taken no steps to
accomplish that, we affirm.
In support of his motion to vacate his plea, the defendant
filed an affidavit reciting that he was born in the Dominican
Republic, but was admitted to the United States as a "lawful
resident alien" in 1985. He received a high school graduate
equivalency degree from a school in the Bronx, New York, and had
been "gainfully employed by a number of employers including a
subcontractor for the U.S. Navy at the Brooklyn Navy Yard." At
the time he filed the motion, he had been in a sixteen-year
relationship with a United States citizen, and they had three
children, ages fourteen, twelve, and nine years old. He owned
an automobile sales business and resided in Connecticut.
The defendant pleaded guilty on January 25, 1989, to one
count of larceny of a motor vehicle and was sentenced to five
3
years of imprisonment.2 On November 4, 2013, he filed a motion
to "vacate judgment," citing G. L. c. 278, § 29D. He also
asserted that he had consulted an immigration attorney to
determine whether he could become a citizen of the United States
and, given his "desire to travel outside of the United States,
especially to visit with friends and family who[m he had] not
seen in many years," whether he could do so. According to the
defendant, the attorney told him that, because of his 1989
conviction, he was deportable, was ineligible to become a
naturalized citizen, and would be excluded from the United
States if he left and tried to return.3
2
The docket indicates that the sentence was to be served at
the Massachusetts Correctional Institution at Concord.
3
The defendant also filed an affidavit from the attorney,
who described himself as "specializing in Immigration and
Naturalization Law." The affidavit is included in the record
and it describes in painstaking detail, and with specific
reference to relevant Federal statutes, the attorney's
conclusion that, as a result of the defendant's conviction, he
"is now therefore deemed an 'aggravated felon' pursuant to
Section 101(a)(43)(G) of the Immigration and Nationality Act
(hereinafter 'INA'), codified at 8 U.S.C.A. § 1101(a)(43)(G).
This conviction independently renders him deportable from the
United States pursuant to INA § 237(a)(2)(A)(iii), codified at 8
U.S.C.A. § 1227(a)(2)(A)(iii), as a 'resident alien' convicted
of an aggravated felony any time after admission." The attorney
also opined that the defendant was deportable independently
because his conviction was for a crime "traditionally
interpreted under the immigration laws as a crime involving
moral turpitude. . . . Pursuant to INA § 237(a)(2)(A)(i),
codified at 8 U.S.C.A. § 1227(a)(2)(A)(i), [the defendant] is
also deportable from the United States for having been convicted
of a crime involving moral turpitude, for which a sentence of
one (1) year or longer may be imposed, committed within five (5)
4
In support of its opposition to the defendant's motion, the
Commonwealth filed an affidavit from the plea judge (who since
had retired). In the affidavit, the judge stated that, although
he did not recall the defendant's case specifically, during the
time period when he accepted the plea, the judge had used a
"script" for providing immigration warnings before accepting a
guilty plea. As a result, the judge was certain that he had
"informed the defendant that, if he . . . were not a citizen of
the United States, the guilty plea might lead to his . . .
deportation or prevent him . . . from becoming a naturalized
citizen." The judge added that, at some point after 1988, he
had "added a warning that the guilty plea might also prevent
reentry into the United States, but [he could not] recall
precisely when [he] did so."
The motion judge denied the defendant's motion to vacate
his plea without a hearing. She found that, with respect to
reentry into the United States, the defendant had failed to
establish that he would be subject to a written policy of
exclusion should he choose to leave the United States and desire
years after the date of his admission to the United States." As
a result, the attorney concluded that, should the defendant
apply for naturalization, his application would be denied, and
that if "the defendant traveled outside of the United States and
attempted to reenter the United States, he would be deemed
inadmissible to the United States pursuant to INA
§ 212(a)(2)(A)(i)(I), codified at 8 U.S.C.A.
§ 1182(a)(2)(A)(i)(I), and 'removal proceedings' would be
commenced against him."
5
to reenter; his showing was "no more than a hypothetical risk."
On January 10, 2014, the defendant's motion for reconsideration
was denied by the motion judge; he timely appealed both orders.
"[I]f the court fails to give immigration warnings and the
defendant 'at any time shows that his plea and conviction may
have one of the enumerated consequences, the [c]ourt . . . shall
vacate the judgment, and permit the defendant to withdraw the
plea' (emphasis supplied). G. L. c. 278, § 29D. The statute is
equally explicit that, absent a record that the warnings were
provided, 'the defendant shall be presumed not to have received
the required advisement.'" Commonwealth v. Grannum, 457 Mass.
128, 133 (2010), quoting from G. L. c. 278, 29D. The statute
unambiguously places on the Commonwealth the burden of proving
that the § 29D requirements were "satisfied, irrespective of the
amount of time that may have passed between a conviction and a
defendant's motion to withdraw his plea or his admission to
sufficient facts." Ibid., quoting from Commonwealth v. Jones,
417 Mass. 661, 664 (1994).
That is the situation here. There appears to be no record
of the defendant's 1989 plea colloquy, and the Commonwealth's
attempt to reconstruct the record makes it clear that, while
there is reason to believe that the defendant was warned that he
could be subject to deportation and denial of naturalization,
the plea judge was not certain that he had advised the defendant
6
that he could be excluded from admission to the United States.
"Therefore, the defendant is entitled to a presumption that he
did not receive [that] immigration warning[], and the
Commonwealth has not satisfied its burden to establish that the
presumption has been overcome." Id. at 134.
However, even when it is clear that the defendant did not
receive the proper warning, the "remedy clause of G. L. c. 278,
§ 29D, is triggered only when a defendant can . . . demonstrate
that he 'may' become subject to one of the immigration
consequences enumerated in the statute. [The court has]
construe[d] this requirement to mean that a defendant must
demonstrate more than a hypothetical risk of such a consequence,
but that he actually faces the prospect of its occurring."
Commonwealth v. Casimir, 68 Mass. App. Ct. 257, 259 (2007),
quoting from Commonwealth v. Berthold, 441 Mass. 183, 185
(2004).
In Berthold, although the defendant had not received all of
the warnings required by the statute, he had been told that he
"could be deported." 441 Mass. at 184. "Because the defendant
was warned of the precise immigration consequence that he
subsequently faced, the motions to withdraw his guilty pleas
were properly denied." Id. at 186-187. In Casimir, the
Commonwealth made no claim that the presumption applied that the
warnings had been provided to the defendant (who sought to
7
become a United States citizen), and the court assumed, "without
deciding, that [he] was not provided the immigration warning."
Casimir, supra at 258-259. Nonetheless, "[b]ecause there ha[d]
been no showing that the defendant [was] 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 [was] not ripe. Thus,
it was error for the . . . judge to have allowed his motion."
Id. at 259.
Here, the defendant claimed that, as a consequence of his
plea, he is deportable, is ineligible for naturalization, and
would be denied reentry to the United States. Because the
Commonwealth established that the defendant received proper
warnings about his risk of deportation and denial of
naturalization, to succeed here, the defendant must show that he
faces the consequence of exclusion.
Larceny is a crime involving moral turpitude. See
Commonwealth v. Cano, 87 Mass. App. Ct. 238, 245 n.15 (2015),
quoting from Morasch v. Immigration & Naturalization Serv., 363
F.2d 30, 31 (9th Cir. 1966) ("[P]etty or grand larceny, i.e.,
stealing another's property qualifies [as a crime involving
moral turpitude"]). As a result of the 1989 plea, the defendant
not only is classified as deportable based on an aggravated
8
felony conviction,4 but also qualifies as inadmissible upon
reentry resulting from the conviction of a crime involving moral
turpitude.5 See 8 U.S.C. § 1227(a)(2)(A)(iii) (2012); 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (2012). In light of the foregoing, the
defendant very likely would be excluded from reentry if he
travels outside the United States. Cf. Grannum, supra at 135-
136.
The question before us is whether the defendant's showing
is sufficient to meet his burden. On the one hand, we have in
mind the recent teaching of the Supreme Judicial Court, albeit
in a different context, that "[a]fter the 1996 effective date of
amendments to the 1952 Immigration and Nationality Act, . . .
'if a noncitizen has committed a removable offense . . . , his
removal is practically inevitable,' subject to limited
exceptions." Commonwealth v. DeJesus, 468 Mass. 174, 180
4
"Any alien who is convicted of an aggravated felony at any
time after admission is deportable." 8 U.S.C.
§ 1227(a)(2)(A)(iii) (2012). "The term 'aggravated felony'
means . . . (G) a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprisonment
[is] at least one year." 8 U.S.C. § 1101(a)(43) (2012).
5
"[A]ny alien convicted of, or who admits having committed,
or who admits committing acts which constitute the essential
elements of -- (I) a crime involving moral turpitude (other than
a purely political offense) or an attempt or conspiracy to
commit such a crime . . . is inadmissible." 8 U.S.C.
§ 1182(a)(2)(A)(i) (2012). Notably, the exception to this
section is inapplicable here, as the sentence imposed on the
defendant was more than one year. See 8 U.S.C.
§ 1182(A)(2)(A)(ii)(II) (2012).
9
(2014), quoting from Padilla v. Kentucky, 559 U.S. 356, 363-364
(2010). Arguably, requiring the defendant, despite his
attorney's informed advice, to risk exclusion by leaving the
country, including his family and his business, to test the
issue whether he actually would be excluded is too great a
burden. Nor is it reasonable to require a motion judge, in the
context of a hearing on a motion to withdraw a plea, to
determine whether the defendant actually wished to leave the
country,6 or to predict, with any hope of accuracy, what actions
ICE officials might take at some future date after unforeseen
national and international events.
On the other hand, in most of the recent cases where a
defendant's motion under § 29D was allowed, he already was
experiencing the consequences for which he had not been warned.
See, e.g., Commonwealth v. Soto, 431 Mass. 340, 342 (2000),
where the "judge at the plea colloquy did not advise the
defendant that he could be excluded from admission to the United
States." After his plea, "the Immigration and Naturalization
Service (INS) initiated proceedings to remove the defendant from
the United States -- he was in Puerto Rico at the time --
because of his prior narcotics conviction. In the notice to
6
It simply is unclear how that could be determined -- with
the purchase of an airline ticket, documentation that the
defendant's mother was actually dying, or evidence that, all his
life, the defendant had said that he wanted to see the Taj Mahal
someday?
10
appear, the INS classified him as an 'arriving alien.'" Id. at
341. As a result, the court ordered that the defendant's motion
to withdraw his guilty plea be allowed and vacated the judgment.
Id. at 342. Compare Commonwealth v. Mahadeo, 397 Mass. 314, 318
(1986) (defendant scheduled for deportation hearing);
Commonwealth v. Marques, 84 Mass. App. Ct. 203, 203-204 (2013)
(defendant denied reentry following a trip to Cape Verde). In
Commonwealth v. Grannum, supra at 136, the court noted that the
defendant had not established that he "has been taken into
custody by Federal immigration authorities, or that he is
currently in deportation proceedings, or has been notified by
Federal immigration authorities that he is now subject to
deportation, or that, as a result of the challenged conviction
(alone or in conjunction with other convictions), the express
written policy of the Federal immigration authorities calls for
the initiation of deportation proceedings against him."7
7
The defendant did submit to the motion judge a memorandum
from ICE on the subject of "Civil Immigration Enforcement
Priorities for the Apprehension, Detention, and Removal of
Aliens." The memorandum "outline[d] civil immigration
enforcement priorities of [ICE] as they relate to the
apprehension, detention, and removal of aliens." We note that
the memorandum does not address the issue of exclusion in
circumstances like the defendant's.
In addition, even if the enforcement priorities described
in the memorandum could reasonably be read as applying to the
decision whether to exclude someone, the memorandum in fact
calls for the exercise of prosecutorial discretion in cases such
as the defendant's, stating, "The rapidly increasing number of
11
Finally, we look at Commonwealth v. Rodriquez, 70 Mass.
App. Ct. 721 (2007). In Rodriquez, as in this case, the
defendant had been advised at the time of her initial plea "of
the consequence of deportation but [the judge] failed to warn
that her guilty plea additionally 'may have the consequences of
. . . exclusion from admission to the United States, or denial
of naturalization, pursuant to the laws of the United States,'
as mandated by G. L. c. 278, § 29D, inserted by St. 1978,
c. 383." 70 Mass. App. Ct. at 721. That defendant was then
"the subject of deportation proceedings," id. at 723, and this
court "agree[d] with the motion judge that because the defendant
[then] also face[d] immigration consequences about which she was
not warned (denial of readmission), the plain language of the
statute require[d] that the defendant be permitted to withdraw
her guilty plea," id. at 722. More specifically, we concluded
that "the defendant's conviction -- a drug-related 'aggravated
felony' for purposes of immigration law -- results in the
automatic, and now permanent, denial of readmission to the
United States, see 8 U.S.C. § 1182(a)(9)(A) (2000), . . . and
criminal aliens who may come to ICE's attention heightens the
need for ICE employees to exercise sound judgment and discretion
consistent with these priorities when conducting enforcement
operations, making detention decisions, making decisions about
release on supervision pursuant to the Alternatives to Detention
Program, and litigating cases. Particular care should be given
when dealing with lawful permanent residents, juveniles, and the
immediate family members of U.S. citizens" (emphasis supplied).
12
that this is an 'enumerated consequence' of the defendant's plea
about which she was not warned." Ibid.The present case is a close one. It is difficult to
imagine what other showing this defendant could have made to
show "that his plea and conviction may have . . . one of the
enumerated consequences." G. L. c. 278, § 29D, as appearing in
St. 2004, c. 225, § 1. On the other hand, there is no pending
proceeding to exclude him from the United States, nor is there a
pending deportation proceeding as there was in Rodriquez that
would increase the likelihood that he would be excluded.
On balance we are constrained to conclude that the motion
judge's decisions were proper. See Grannum, 457 Mass. at 136
("Mere eligibility for deportation is not a sufficient basis for
relief under G. L. c. 278, § 29D. Nor is it sufficient to show
that, if the Federal government were to initiate deportation
proceedings, the defendant almost inevitably would be
deported").8
Orders denying motions to
vacate judgment and for
reconsideration affirmed.
8
While we affirm the orders denying the defendant's motions
at this time, nothing in this opinion should prevent the
defendant from filing another motion, should he be able to meet
the Grannum test at some future date.