Commonwealth v. Valdez

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SJC-12040

COMMONWEALTH vs. FRANK VALDEZ. 1

Middlesex. April 4, 2016. - August 17, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ. 2

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.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

Scott W. Kramer for the defendant.
Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.

1
Also known as Franklin Falcon and Franklin Falcone.
2
Justice Cordy participated in the deliberation on this
case and authored the concurring opinion prior to his
retirement. Justices Spina and Duffly participated in the
deliberation on this case prior to their retirements.
 2

Jennifer Klein & Wendy S. Wayne, Committee for Public
Counsel Services, for Committee for Public Counsel Services,
amicus curiae, submitted a brief.

GANTS, C.J. Under G. L. c. 278, § 29D, where a judge fails

to advise a defendant during the plea colloquy that conviction

may have the consequence of exclusion from admission to the

United States, the conviction must be vacated upon motion of the

defendant if the defendant shows that his or her conviction "may

have" that consequence. The issue on appeal is what the

defendant must show to establish that his conviction "may have"

the consequence of exclusion from admission to the United

States. We conclude that a defendant satisfies this burden by

showing (1) that he has a bona fide desire to leave the country

and reenter, and (2) that, if the defendant were to do so, there

would be a substantial risk that he or she would be excluded

from admission under Federal immigration law because of his or

her conviction. Because we conclude that the defendant has met

this burden, we vacate the defendant's conviction and remand the

case for a new trial. 3

Background. The defendant was born in the Dominican

Republic and is a citizen of that country. In 1985, he was

admitted to the United States as a lawful permanent resident

3
We acknowledge the amicus brief submitted by the
Immigration Impact Unit of the Committee for Public Counsel
Services.
 3

alien. In January, 1989, he pleaded guilty in the Superior

Court to an indictment alleging larceny of a motor vehicle, in

violation of G. L. c. 266, § 28, and was sentenced to a prison

term of five years at the Massachusetts Correctional Institution

at Concord.

The defendant is now a resident of Connecticut and owns his

own business selling automobiles. Since 1997, he has been in a

relationship with a citizen of the United States, with whom he

has three children. No immigration proceedings have been

commenced against the defendant by Federal authorities.

At some time before September 27, 2013, the defendant

retained an immigration attorney, Nareg Kandilian, to advise him

regarding his desire to become a United States citizen and to

travel outside the United States. He told Kandilian that he

wished to see friends and family in the Dominican Republic that

he had not seen in many years, but feared that, if he were to

leave the United States, he would be deemed inadmissible and

placed into removal proceedings upon his attempt to reenter.

Kandilian reviewed the docket information in this case and the

defendant's board of probation record. The attorney concluded

that, because larceny of a motor vehicle is a "crime involving

moral turpitude" punishable by imprisonment for more than one

year, if the defendant were to travel outside the United States

and attempt to reenter, he would be found inadmissible under 8
 4

U.S.C. § 1182(a)(2)(A)(i)(I) (2012), and removal proceedings

would be initiated against him. 4 The attorney also concluded

that the defendant was convicted of an "aggravated felony" under

8 U.S.C. § 1101(a)(43)(G) (2012) and is deportable under 8

U.S.C. § 1227(a)(2)(A)(iii) (2012). The attorney further

concluded that the defendant is deportable under 8 U.S.C.

§ 1227(a)(2)(A)(i), because the defendant's offense is a crime

involving moral turpitude that was committed within five years

of his admission to the United States.

To avoid these consequences, the defendant, through

counsel, moved to withdraw the guilty plea and vacate the

conviction, claiming that the judge accepted his plea without

advising that his conviction "may have consequences of

deportation, exclusion from admission to the United States, or

denial of naturalization, pursuant to the laws of the United

States," as required by G. L. c. 278, § 29D. In support of his

motion, the defendant filed affidavits from Kandilian and

himself, and a memorandum dated March 2, 2011, from John Morton,

Director of United States Immigration and Customs Enforcement

(ICE), to all ICE employees ("Morton memorandum"). In the

4
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 unified exclusion and deportation
proceedings under a single system of "removal proceedings." See
Pub. L. No. 104-208, 110 Stat. 3009 (1996); 12 U.S.C. § 1229a
(2012). The term "exclusion" is no longer used by immigration
authorities but is instead referred to as "inadmissibility."
 5

memorandum, Morton declared that ICE "only has resources to

remove approximately 400,000 aliens per year, less than [four]

percent of the estimated illegal alien population in the United

States," and therefore "must prioritize the use of its

enforcement personnel, detention space, and removal resources to

ensure that the removals the agency does conduct promote the

agency's highest enforcement priorities, namely national

security, public safety, and border security." He identified

"aliens convicted of crimes, with a particular emphasis on

violent criminals, felons, and repeat offenders," among those

given the highest priority for removal. "For purposes of

prioritizing the removal of aliens convicted of crimes," he

directed ICE personnel to refer to offense levels, "with Level 1

and Level 2 offenders receiving principal attention." Level 1

offenders include "aliens convicted of 'aggravated felonies,' as

defined in [8 U.S.C. § 1101(a)(43)]." Morton also emphasized

the need "for ICE employees to exercise sound judgment and

discretion consistent with these priorities," and noted that

"[p]articular care should be given when dealing with lawful

permanent residents, juveniles, and the immediate family members

of [United States] citizens."

In support of its opposition to the motion, the

Commonwealth filed an affidavit from the then retired plea

judge, who stated that he "invariably" informed a defendant that
 6

"the guilty plea might lead to his or her deportation or prevent

him or her from becoming a naturalized citizen," and that he

would have given the defendant these warnings in accordance with

his invariable practice. He also stated, "At some point after

1988, I added a warning that the guilty plea might also prevent

reentry into the United States, but I cannot recall precisely

when I did so." He noted that he reviewed the plea colloquy he

conducted on November 16, 1988, in a different case involving a

different defendant, and that colloquy included the deportation

and naturalization warnings, but not the warning regarding

reentry.

The motion judge, based on the affidavits alone, found that

the Commonwealth had met its burden of showing that the

defendant had been properly advised at the plea hearing that his

guilty plea could subject him to deportation or denial of

naturalization, but had not met its burden of showing that he

had been advised that his plea could subject him to exclusion

from admission to the United States should he leave the country

and attempt to reenter. The judge nonetheless denied the motion

because, citing Commonwealth v. Grannum, 457 Mass. 128 (2010),

she found that the defendant "has not established that he would

be subject to an express written policy of exclusion should he

choose to leave the United States and desire to re-enter," and

therefore "has shown no more than a hypothetical risk" of
 7

exclusion. The defendant filed a motion for reconsideration,

which the judge also denied; the defendant then timely appealed

from both orders.

The Appeals Court affirmed in a published opinion, but

rested its decision on a different ground. Commonwealth

v. Valdez, 88 Mass. App. Ct. 332 (2015). The court agreed with

the motion judge that the Commonwealth had failed to prove that

the defendant received the required warning regarding exclusion

from admission to the United States. Id. at 332. It recognized

that the defendant had been convicted of a crime involving moral

turpitude and "very likely would be excluded from reentry if he

travels outside the United States." Id. at 336. It also

recognized that, because he had been convicted of an aggravated

felony, he is deportable under 8 U.S.C.

§ 1227(a)(2)(A)(iii). Id. But the court concluded that the

defendant had failed to meet his burden of showing that "he

faces the consequence of exclusion," id. at 335, because he "has

not been excluded from the United States," id. at 332; "there is

no pending proceeding to exclude him from the United

States," id. at 338; and there is no "pending deportation

proceeding . . . that would increase the likelihood that he

would be excluded." Id. We granted the defendant's application

for further appellate review.
 8

Discussion. When the Legislature enacted St. 1978, c. 383,

in 1978, inserting § 29D into chapter 278 of the General Laws,

it took great pains to ensure that defendants were informed that

their plea of guilty, admission to sufficient facts, or plea of

nolo contendere may have adverse immigration consequences.

See Commonwealth v. Villalobos, 437 Mass. 797, 805 (2002)

(entire purpose of statute is to ensure that defendants entering

pleas are made aware of potential for adverse immigration

consequences). 5 The Legislature set forth in the statute the

5
The full text of G. L. c. 278, § 29D, as inserted by St.
1978, c. 383, is as follows:

"The [c]ourt shall not accept a plea of guilty or
nolo contendere from any defendant in any criminal
proceeding unless the [c]ourt advises him 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
defendant shall not be required at the time of the
plea to disclose his or her legal status in the United
States to the court.

"If the [c]ourt 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 [c]ourt, 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.' Absent a record that
the [c]ourt provided the advisement required by this
section, the defendant shall be presumed not to have
received the required advisement."
 9

precise language of the warning that the judge was to give a

defendant before accepting a plea: "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." G. L. c. 278, § 29D. See Commonwealth

v. Soto, 431 Mass. 340, 342 (2000) ("The Legislature has put the

three required warnings in quotation marks, and each of them is

required to be given so that a person pleading guilty knows

exactly what immigration consequences his or her guilty plea may

have"). Section 29D provided that, should the judge fail

adequately to give this warning, and should the defendant

subsequently move to vacate the plea, the judge "shall vacate

the judgment," provided that the defendant "at any time shows

that his plea and conviction may have one of the enumerated

consequences." Id. By including the words, "at any time," the

Legislature made clear that there was no limitation in time to

bringing a motion to vacate the plea, even though the passage of

time might mean that the tape recording, transcript, and other

records of the plea colloquy are no longer available through no

The statute was subsequently amended in 1996 and 2004, after the
guilty plea in this case, so we refer only to the original
language of the statute, but our holding in this case would be
the same under the current language. See St. 1996, c. 450,
§ 254; St. 2004, c. 225, § 1.
 10

fault of the Commonwealth, and that no one may recall what was

said. See Grannum, 457 Mass. at 132-133 ("Records may be

unavailable because they have been disposed of pursuant to court

rules authorizing the destruction of old records, see S.J.C.

Rule 1:12, as appearing in 382 Mass. 717 [1981], and

reconstruction may be impossible because of the death,

retirement, unavailability, or lack of recollection of the

participants in the plea hearing"). The Legislature made

equally clear that the presumption of regularity that we apply

in motions to vacate a guilty plea under Mass. R. Crim. P. 30

(b), as appearing in 435 Mass. 1501 (2001), see Commonwealth

v. Lopez, 426 Mass. 657, 662 (1998), does not apply where a

defendant moves to vacate a plea under § 29D, because the

statute provided that "the defendant shall be presumed not to

have received the required advisement" where there is no record

that the judge did so. See Grannum, supra at 134 ("the

presumption of regularity that warnings were given cannot apply

in the face of the specific language of G. L. c. 278, § 29D").

Where, as here, the Commonwealth failed to meet its burden

of showing that the defendant was advised that his guilty plea

may have the consequence of "exclusion from admission to the

United States," § 29D mandates that the defendant be permitted

to withdraw his plea, provided the defendant shows that his plea

"may have" that consequence. "We construe this requirement to
 11

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. Berthold, 441 Mass.

183, 185 (2004). Where the immigration consequence at issue is

deportation rather than exclusion from admission, we have said

that, to satisfy this burden, the defendant must show more than

that, "if the Federal government were to initiate deportation

proceedings, the defendant almost inevitably would be

deported." Grannum, 457 Mass. at 136. See Commonwealth

v. Rzepphiewski, 431 Mass. 48, 50 n.6 (2000). Rather, "[w]here

the defendant claims that he faces a risk of deportation, we

construe the statute to require that relief be available only

where the defendant shows either that the Federal government has

taken some step toward deporting him or that its express written

policy calls for the initiation of deportation proceedings

against him." Grannum, supra.

This standard is appropriate where the immigration

consequence is deportation because, as the Morton memorandum

makes clear, far more noncitizens are deportable than ICE has

the resources to deport, so the risk of deportation is

hypothetical even for a noncitizen who is deportable until there

is evidence that ICE has decided or will decide to initiate

deportation proceedings. But this standard is not appropriate

where the immigration consequence is exclusion from admission to
 12

the United States because, where a defendant's conviction would

render him or her inadmissible under Federal immigration law,

exclusion from admission is far more than a hypothetical risk if

the defendant were to leave the United States.

Every noncitizen who has left the United States and seeks

admission at a United States port of entry "must present

whatever documents are required and must establish to the

satisfaction of the inspecting officer that the alien is not

subject to removal under the immigration laws . . . and is

entitled, under all of the applicable provisions of the

immigration laws . . . , to enter the United States." 8 C.F.R.

§ 235.1(f) (2013). As stated, under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I), subject to certain exceptions, "any alien

convicted of . . . a crime involving moral turpitude . . . is

inadmissible," and therefore ineligible to be admitted to the

United States.

To ensure that all noncitizens who are not eligible for

admission because of prior criminal convictions are identified

at the time of inspection, United States Customs and Border

Protection (CBP) obtains identifying information for all

individuals arriving by sea or air from outside the United

States prior to arrival, see 8 U.S.C. § 1221(a) (2012), and

screens that information against a variety of law enforcement

databases, including the National Crime Information Center. See
 13

8 U.S.C. § 1226(d) (2012) (United States Attorney General shall

"maintain a current record of aliens who have been convicted of

an aggravated felony," which shall be made available to

inspectors at ports of entry); United States Department of

Homeland Security, Privacy Impact Assessment for the TECS

System: CBP Primary and Secondary Processing (Dec. 22, 2010).

At the time of inspection, if the examining officer determines

that the noncitizen seeking admission "is not clearly and beyond

a doubt entitled to be admitted, [he or she] shall be detained

for [removal proceedings]." 8 U.S.C. § 1225(b)(2)(A) (2012). 6

See also 8 U.S.C. § 1226(c)(1)(A) (2012) (individual deemed

inadmissible under 8 U.S.C. § 1182[a][2] "shall" be detained);

8 C.F.R. § 235.3(b)(5)(ii) (2013) (where noncitizen with lawful

permanent resident status seeks admission but "appears to be

inadmissible, the immigration officer may initiate removal

proceedings against [him or her]").

An immigration judge will preside over the removal

proceedings, see 8 U.S.C. § 1229a(a)(1) (2012), at which the

noncitizen has the burden of establishing that he or she "is

clearly and beyond doubt entitled to be admitted and is not

inadmissible under [8 U.S.C. § 1182]". 8 U.S.C.

6
A noncitizen returning to the United States who is
lawfully admitted for permanent residence is regarded as seeking
admission if he or she has committed an offense identified in 8
U.S.C. § 1182(a)(2) (2012), which includes crimes involving
moral turpitude. See 8 U.S.C. § 1101(a)(13)(C)(v) (2012).
 14

§ 1229a(c)(2)(A) (2012). Under these circumstances, it is

virtually inevitable that an individual who is ineligible for

admission based on a criminal conviction under 8 U.S.C.

§ 1182(a)(2) will be deemed inadmissible to the United States

upon arrival, and ordered removed by an immigration judge

pursuant to 8 U.S.C. § 1229a.

The Commonwealth argues, as the Appeals Court held, that a

defendant can only satisfy his or her burden of demonstrating

"more than a hypothetical risk" of exclusion by showing that

there is a pending proceeding to exclude him from admission to

the United States. In practice, this would mean that the

defendant must leave the country and be denied readmission, as

there can be no pending proceeding to exclude an applicant from

admission to the United States unless the applicant has filed

the required documents with Federal authorities upon attempting

to enter the country. See 8 U.S.C. § 1181(a) (2012) ("no

immigrant shall be admitted into the United States unless at the

time of application for admission" he or she presents valid

documents [emphasis added]). We see two problems with such an

interpretation of G. L. c. 278, § 29D.

First, it would be contrary to the language of § 29D, which

at the time of the defendant's plea provided that a defendant's

conviction shall be vacated upon a showing by the defendant

"that his plea and conviction may have one of the enumerated
 15

consequences" (emphasis added). We interpreted this original

version of the statute to mean that a defendant could attack his

or her conviction only before the defendant suffered the

immigration consequence, and therefore held that the remedy was

not available to a defendant who had already been deported.

See Commonwealth v. Pryce, 429 Mass. 556, 559 (1999). 7 Under our

interpretation of § 29D in Pryce, a defendant could not attack

his or her conviction if he or she had already been excluded

from admission to the United States, but under the

Commonwealth's interpretation, a defendant could not attack his

or her conviction until he or she had been excluded from

admission to the United States. 8 The Commonwealth's

interpretation would transform the words "may have" into "have

had," which this court declined to do in Pryce, supra ("The

concept of attacking the conviction after deportation has taken

7
In 2004, the Legislature amended G. L. c. 278, § 29D, to
make clear that the remedy of vacatur of the conviction is
available to defendant who "may have or has had one of the
enumerated consequences, even if the defendant has already been
deported from the United States." St. 2004, c. 225, § 1.
8
In Commonwealth v. Soto, 431 Mass. 340, 341-342 (2000), we
ordered that a defendant's guilty plea be vacated because the
judge had not advised the defendant that his conviction could
result in his exclusion from admission to the United States
where the Immigration and Naturalization Service "initiated
proceedings to remove the defendant from the United States -- he
was in Puerto Rico at the time -- because of his prior narcotics
conviction." We do not opine whether this holding would have
been different under Commonwealth v. Pryce, 429 Mass. 556, 559
(1999), had he not been in a territory of the United States when
he was denied admission.
 16

place is missing from the statute. We perceive this to be more

than a semantic lapse").

Second, such an interpretation would be contrary to the

legislative spirit of § 29D, because it would effectively deny a

defendant a remedy where he or she was convicted without being

warned of the immigration consequence of exclusion from

admission to the United States. Few, if any, defendants whose

conviction would render them inadmissible upon reentry would

dare to leave the country, so they could show no pending

proceeding, and therefore could not show that their conviction

"may have" the consequence of exclusion from admission. For

those foolish or brave enough to leave the country in these

circumstances, it would be extremely difficult for them to

challenge their prior conviction after being found inadmissible.

Where a noncitizen is deemed inadmissible because of conviction

of a crime of moral turpitude and for that reason placed in

removal proceedings, he or she is subject to mandatory

detention. See 8 U.S.C. § 1226(c)(1)(a). Because immigration

proceedings against those who are detained move quickly, the

defendant is likely to be removed before a postconviction motion

can be adjudicated. 9 The Commonwealth points to no statute or

9
The average length of detention for those removed is
twenty-seven days. See Transactional Records Access
Clearinghouse, Legal Noncitizens Receive Longest ICE Detention
 17

precedent that requires the suspension of Federal removal

proceedings while a postconviction motion is pending. Thus,

requiring a noncitizen defendant to wait until he or she is

found inadmissible before filing a motion under § 29D would

greatly diminish the practical availability of the remedy

provided by § 29D for those at risk of exclusion from admission

to the United States.

We hold that, where a defendant has not received the

required exclusion from admission warning under § 29D, he or she

satisfies the burden of showing that his or her conviction "may

have" the consequence of exclusion from admission to the United

States by showing (1) that he has a bona fide desire to leave

the country and reenter, and (2) that, if the defendant were to

do so, there would be a substantial risk that he or she would be

excluded from admission under Federal immigration law because of

his or her conviction. Here, where the motion judge was not the

plea judge and did not conduct an evidentiary hearing, we are in

the same position as the motion judge to make findings.

See Commonwealth v. Sullivan, 469 Mass. 340, 351 (2014). We

conclude from the record that the defendant has satisfied both

requirements for relief.

(June 3, 2013), http://trac.syr.edu/immigration/reports/321/
[https://perma.cc/S33G-CPF3].
 18

First, the defendant has met his burden of showing a bona

fide desire to travel outside the United States where he told

his immigration attorney that he wished to "travel outside of

the United States and to his home country, the Dominican

Republic, to visit with friends and family who he has not seen

in many years." We deem this a modest burden, because we

recognize that it is natural for an immigrant who has left

family and friends behind to wish to see them again. We also

infer the sincerity of his desire to see family and friends

because he spoke of it to his immigration attorney before the

motion was filed, and therefore could not have known that the

judge would later find that he had been warned of all the

immigration risks except exclusion from admission to the United

States, which is the risk relevant to his desire to leave the

United States. 10

Second, there is a substantial risk that, if the defendant

were to leave the country, he would be excluded from admission

to the United States under Federal immigration law and placed in

removal proceedings as a result of his 1989 conviction. The

Federal statute governing the inadmissibility of noncitizens, 8

10
Although the affidavit offered by the defendant's
immigration attorney here provided support for the defendant's
showing of a bona fide desire to travel outside the United
States, we do not suggest that an affidavit from an immigration
attorney is necessary to enable a defendant to make the required
showing.
 19

U.S.C. § 1182(a)(2), does not identify the crimes that qualify

as "involving moral turpitude." To determine whether a crime

involves moral turpitude, courts look to the "inherent nature of

the crime of conviction, as defined in the criminal

statute." Mejia v. Holder, 756 F.3d 64, 68 (1st Cir. 2014),

quoting Idy v. Holder, 674 F.3d 111, 118 (1st Cir. 2012). We

are not aware of any case that has specifically declared whether

larceny of a motor vehicle, in violation of G. L. c. 266, § 28,

is a crime involving moral turpitude, but it is likely that the

immigration authorities would conclude that it is.

Under Massachusetts law, to convict a defendant of this

crime, the Commonwealth must prove that the defendant took a

motor vehicle owned by another with "an intent permanently to

deprive the rightful owner of the possession of the motor

vehicle." Commonwealth v. Giannino, 371 Mass. 700, 703 (1977).

See Commonwealth v. Moore, 36 Mass. App. Ct. 455, 457 (1994).

Because the crime of larceny of a motor vehicle has a required

element that the defendant intends permanently to deprive the

rightful owner of possession, the immigration authorities are

likely to find that the crime involves moral turpitude.

See Almanza-Arenas v. Holder, 771 F.3d 1184, 1190 (9th Cir.

2014) (permanent taking of motor vehicle, but not temporary

taking, is crime involving moral turpitude); Mejia, supra

(same); Hashish v. Gonzalez, 442 F.3d 572, 576 (7th Cir.), cert.
 20

denied, 549 U.S. 995 (2006) ("'theft' is a crime of moral

turpitude"). Once found to have committed a crime involving

moral turpitude, the defendant would be ineligible for admission

under 8 U.S.C. § 1182(a)(2)(A)(i)(I). 11

In addition, the defendant's conviction would be deemed an

aggravated felony because it is a "theft offense" for which he

was imprisoned for more than one year. See 8 U.S.C.

§ 1101(a)(43)(G). His conviction of an aggravated felony

renders him ineligible for certain forms of relief in removal

proceedings in immigration court. See, e.g., 8 U.S.C.

§ 1229b(a) (2012) (cancellation of removal not available if

noncitizen has been convicted of aggravated felony).

Conclusion. Because the defendant has met his burden of

showing that his conviction "may have" the consequence of

exclusion from admission to the United States, and he was not

warned of this consequence during his plea colloquy, we conclude

that his conviction must be vacated in accordance with § 29D.

We therefore reverse the order of the judge denying the

defendant's motion to vacate judgment and remand the case for a

new trial.

So ordered.

11
The exceptions to the general rule that "any alien
convicted of . . . a crime involving moral turpitude" is
inadmissible do not apply here based on the information
available in the record. See 8 U.S.C. § 1182(a)(2)(A)(i)(I);
8 U.S.C. § 1182(a)(2)(A)(ii).
21
 CORDY, J. (concurring). I agree that the wording of G. L.

c. 278, § 29D, dictates the outcome reached by the court. I

concur only to point out the anomalous result created by

phrasing of the statute. Here, more than twenty-five years

after his plea of guilty, and long after the records of

precisely what occurred at the plea hearing had been duly

destroyed pursuant to court rule, the defendant is able to undo

his conviction because he wishes to make a trip to visit old

friends and family in his native country, and might well be

denied reentry to the United States, in light of the conviction

-- all because, not surprisingly, the Commonwealth cannot

clearly prove that when he pleaded guilty in 1989 he was advised

that such a denial of reentry might someday occur as a result.

If, on the other hand, deportation proceedings had been

commenced against the defendant at some point over the last

twenty-five years based on the same conviction, such a wiping

clean of the criminal record would not have been available to

him, given that the Commonwealth was able to obtain an affidavit

regarding the distant memory of a still living retired judge

that he was certain he would have advised the defendant in 1989

that deportation (as well as the denial of naturalization) might

be a consequence of the conviction. Of course, once the

conviction is vacated due to the travel reentry concern, neither
 2

a deportation nor a denial of naturalization could occur as a

result of it.

The present case involved only the crime of larceny of a

motor vehicle, but the statute applies to all crimes against

persons and property to which a person might have pleaded guilty

any time after 1978, when the statute was enacted. As is

evident in this case, there is no time limit as to when a

challenge can be brought -- and a plea of guilty vacated -- even

though the plea may have been voluntary and fully supported by

the facts. Further, contrary to the ordinary presumption of

regularity in court proceedings that is applied in all other

motions to vacate guilty pleas where, because of the passage of

time, the record of the proceeding is not fully available, the

statute creates the opposite presumption when immigration

warnings are at issue.

If this is indeed what the Legislature intends, so be it.