Commonwealth v. Villalobos

Ireland, J.

(dissenting). I respectfully dissent from the court’s conclusion that G. L. c. 278, § 29D, does not require judges to inform defendants that an admission of sufficient facts followed by a continuance without a finding has the same immigration consequences as a conviction. I do so because the warnings as they now read are unfair and misleading, and are contrary to common sense and legislative intent. As the court acknowledges, alien warnings that track the statute verbatim are “inadequate, and even potentially misleading,” in light of current immigration law. Ante at 803.

The alien warnings set forth in the statute are intended “to assure that a defendant knows that a plea of guilty may have an effect on his alien status.” Commonwealth v. Lamrini, 27 Mass. App. Ct. 662, 666 (1989). As the court explains, due to changes in Federal immigration law after G. L. c. 278, § 29D, was enacted, a continuance without a finding now triggers the same immigration consequences as a conviction. Ante at 802-803. However, there is no reason to believe that a lay person would know that a continuance without a finding is treated as a conviction for immigration purposes even where the charges are eventually dismissed. In fact, as the court explains, “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.’ ” Ante at 802, quoting Commonwealth v. Pyles, 423 Mass. 717, 722 n.7 (1996). Thus, as the court acknowledges, the warnings “can be *807misinterpreted 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.” Ante at 805. The fact that the court goes so far as to recommend language to clarify the warnings further suggests that the court is aware that using the exact words of the statute is gravely misleading. See ante at 806 n.5. It defies common sense to think that a Legislature concerned with warning defendants of potential immigration consequences would intend to perpetrate such a misunderstanding.

I do not agree with the court that it would impermissibly “change” the statute (see ante at 804) to require judges to inform defendants that an admission to sufficient facts to warrant a finding of guilty may lead to deportation, exclusion from admission to this country, or denial of naturalization. This court clearly has the authority to interpret the precise wording of a statute in order to follow legislative intent and avoid an outcome that is antithetical to the purpose of the statute. See, e.g., Sullivan v. Brookline, 435 Mass. 353, 360 (2001) (“A fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result”). As the Appeals Court noted, “[t]he exact language of the warning is not crucial; what is important is that the purpose of the statute be satisfied . . . .” Commonwealth v. Hason, 27 Mass. App. Ct. 840, 843-844 (1989). But see Commonwealth v. Soto, 431 Mass. 340, 342 (2000), quoting Commonwealth v. Lamrini, supra at 667 (“[t]he better practice would have been for the judge to read directly from the statute [the advisement contained therein]”).

Moreover, this court has previously interpreted the alien warnings provision broadly, so as to comply with the statute’s purpose. See Commonwealth v. Mahadeo, 397 Mass. 314, 316-317 (1986). General Laws c. 278, § 29D, provides that a judge must give the alien warnings when accepting “a plea of guilty or nolo contendere.” The statute “does not expressly govern, admissions to sufficient facts, which technically are not pleas at all.” Commonwealth v. Mahadeo, supra at 316. Nevertheless, this court found that the warnings must apply to admissions to *808sufficient facts, because such admissions are “the functional equivalent of a guilty plea for purposes of G. L. c. 278, § 29D.” Id. Furthermore, this court found that to hold otherwise would “defeat the intended statutory purpose.” Id. at 317.1 believe that just as this court found in the Mahadeo case, so too should we find that a judge must warn defendants that admissions to sufficient facts have the same immigration consequences as convictions. See id.

As the court acknowledges, “it would be a perversion of [the statute’s] purpose to allow the warnings to become instead a false assurance that there will be no [immigration] consequences from an admission, continuance without a finding, and dismissal.” Ante at 805. I believe that given the changes in Federal immigration law, the only way to comply with the intent of the Legislature is to require judges to inform defendants that an admission to sufficient facts may have immigration consequences. See ante at 806 n.5 (suggesting model language for warning).

In sum, I believe that the court’s decision does a disservice to the intention of the statute, and endorses an unfair and misleading practice. I do not agree with the court that we are without power to address this problem. I would urge the Legislature to act immediately to correct the result reached by the court’s decision.