In Federal custody and facing the prospect of
The requirements imposed by the courts on a judge who accepts a guilty plea are many, but those imposed by the Legislature are few. Significantly, one such provision is that the court give immigration warnings to a defendant who tenders a plea.4 Indeed, in G. L. c. 278, § 29D, the Legislature sets out the very words that the judge should employ:
“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.”
2The Legislature has put the three required warnings [deportation, exclusion from the United States, denial of naturalization]
The statute also provides that, where the court has failed to give the immigration warnings to a defendant whose guilty plea may have one of the enumerated consequences, “the court . . . shall vacate the judgment, and permit the defendant to withdraw the plea of guilty.” G. L. c. 278, § 29D (emphasis supplied). See Commonwealth v. Mahadeo, 397 Mass. 314 (1986) (defendant not warned that conviction could have adverse consequences on his immigration status entitled to have the judgment of conviction vacated); Commonwealth v. Soto, supra (defendant who was undergoing Federal removal proceedings and had not been advised that he could be excluded from admission to the United States following conviction entitled to allowance of motion to withdraw guilty plea). Compare Commonwealth v. Jones, 417 Mass. 661 (1994) (motion to withdraw guilty plea allowed where Commonwealth could not satisfy its burden of proving that judge who accepted original plea had advised the defendant that deportation could be a consequence of his conviction).
In the present case, the judge who accepted the defendant’s admissions failed to comply with the statute when he conscientiously, but inadequately, told the defendant: “If you’re not a full United States citizen, a finding of guilty in these cases could affect your status; do you understand that?”5 The judge’s words neither conformed to the language of G. L. c. 278, § 29D, nor did they address the three potential consequences embedded in the statute. It is not enough that, in some general way, a defendant “know[s] his guilty plea may have immigration consequences.” Commonwealth v. Soto, 431 Mass. at 342. The judge’s allusion to undescribed effects on the defendant’s
The dissent acknowledges that the judge’s spoken words did not communicate the immigration warnings elaborated in G. L. c. 278, § 29D, but nonetheless contends that a written advisement of those warnings is sufficient to comply with the statute.6 We disagree.
A fair reading of G. L. c. 278, § 29D, clearly indicates that the Legislature intended that a defendant be orally advised by a judge of the immigration consequences of his plea. The statute states that “[t]he court shall not accept a plea of guilty . . . unless the court advises [the] defendant” of the three warnings. The defendant, in turn, “shall not be required at the time of his plea to disclose to the court his legal status in the United States.” The statute further states that, “[i]f 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 . . . shall vacate the judgment, and permit the defendant to withdraw the plea of guilty.”
Not only does G. L. c. 278, § 29D, disclose a legislative intent that the warnings be given orally by a judge, but there
The inclusion of the “Tender of Plea or Admission/Waiver of Rights” form in the record of the proceedings below changes nothing, although the dissent suggests otherwise. The importance of a written record arises in the context of the statutory provision that “[a]bsent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.” G. L. c. 278, § 29D. Thus, the utility of a written record is in its tendency to demonstrate that the warnings were in fact given orally by the judge conducting the colloquy. See Commonwealth v. Rzepphiewski, 431 Mass. 48, 52-53 (2000); Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928, 929 (1999). See also Commonwealth v. Ashmon, 434 Mass. 1005 (2001). In this case there is no question that the judge failed to do so. Nor is there any independent significance to the inclusion of the printed form in the record where no case has ever held that such a writ
When the judge gives the statutory advisement in the course of an oral plea colloquy, he can determine that the defendant has both received and understood the warnings. Although there is no requirement that the judge make specific findings in that regard,7 the use of a written form referencing the words of the statute and signed by the defendant is an inadequate substitute for giving the advisement orally. During a colloquy, the judge has the opportunity to observe and interact with the defendant and, in circumstances where an interpreter may be required, can communicate the warnings to the noncitizen defendant with greater assurance than can be supplied by the preprinted monolingual form found in the Appendix.8
The importance of ensuring that the immigration warnings are properly conveyed to defendants is underscored by recent changes in Federal immigration law. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, which amends the Immigration and Nationality Act, imposes new and significantly harsher sanctions on noncitizens as a consequence of even relatively minor criminal convictions. Noncitizens are subject to mandatory deportation for numerous additional offenses under a broadened definition of “aggravated felony” which now includes charges with a possible sentence of one year or more, whether actually imposed or suspended.9 8 U.S.C. §§ . 1101(a)(43)-(48)(B) (Supp. V 1999).
Finally, immigration law judges have no discretion to decline deportation based on the noncitizen’s length of residence in the United States, employment, family ties, or the fact that he may have children who are citizens. In effect, hardship relief which could previously be provided under section 212(c) of the Immigration and Nationality Act is no longer available in such cases. 8 U.S.C. § 1182(c) (Supp. V 1999).
Against this backdrop, the warnings required by G. L. c. 278, § 29D, are no small thing. If correctly administered, they might provide the noncitizen his last opportunity to consider whether a change of plea is in his best interest. A defendant can make such a determination only if he has been fully advised by the judge, pursuant to the statute, of the considerable consequences that could follow.
It is understandable that in the hurly-burly of our increasingly busy District Courts a premium is placed on the prompt disposition of cases. Yet it is precisely in such an environment that we must ensure that important things are done right.10
The consequences of a guilty plea to a noncitizen can be dra
The order denying the defendant’s motion to withdraw his admissions to sufficient facts is reversed. The judgments are reversed, the findings of guilty are set aside, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
2.
The defendant immigrated to the United States when he was six years old. He was seventeen at the time of the offenses that are the subject of this appeal. At a point following his admissions, he was taken into custody by the Immigration and Naturalization Service pending a deportation hearing.
3.
The charges brought against the defendant arose from three incidents during July, 1996, in which he and other youths were allegedly involved in stealing a motor vehicle and damaging the windows of and breaking into several others. The defendant’s admissions to sufficient facts encompassed all the pending charges. He was sentenced to one year in a house of correction, fifty-eight days to be served, with the balance of the sentence suspended for one year, with probation.
4.
For purposes of the defendant’s motion, an admission to sufficient facts is treated as the “functional equivalent of a guilty plea.” Commonwealth v. Rzepphiewski, 431 Mass. 48, 50 n.3 (2000). See Commonwealth v. Duquette, 386 Mass. 834, 837-838 (1982).
5.
The record indicates that the defendant’s response was inaudible.
6.
The “Tender of Plea or Admission/Waiver of Rights” form (set forth in the Appendix), upon which the dissent relies, does not purport to be a judicial advisement of the immigration consequences of a defendant’s plea. Rather, the form contains a preprinted statement that the defendant has consulted with his attorney, with whom he has discussed his “constitutional and other rights.” Following a lengthy recitation of rights understood and waived, the form states, using the words of the statute, that the defendant is aware that if he is not a citizen of the United States his conviction could have one of the enumerated immigration consequences. Immediately following is a section in which the defendant’s attorney certifies generally that she has explained to the defendant the pertinent provisions of law and other rights that bear on his plea. Even if this mutual acknowledgment by client and counsel signifies that counsel supplied the defendant with information concerning the immigration consequences of his plea, that recitation does not satisfy the absolute statutory requirement that the immigration advisement contained in G. L. c. 278, § 29D, be provided by “the court.”
7.
We note that the plea judge also signed the preprinted tender of plea form, certifying that the defendant was advised of the statutory warnings in the language of the statute that was lacking from his oral colloquy. His certification is enigmatic in light of the fact that he failed to give the warnings. We observe that the dissent does not rely on the judge’s signed statement in support of its position.
8.
As correctly stated in the dissent, the defendant has raised no issues concerning his literacy or his fluency in English. Nonetheless, we note that reliance on a printed form alone as the sole source of the statutory advisement to defendants is likely to generate numerous postconviction challenges on such grounds.
9.
The triggering event for a deportation is normally a conviction which, under Federal law, includes a finding of guilt after trial before a judge or jury, a plea of guilty or an admission to sufficient facts to warrant a finding of guilt. So long as the judge imposes some form of punishment, penalty, or restraint on the noncitizen’s liberty, even if the imposition of the sentence is suspended,
10.
In asserting the sufficiency of written notice of the statutory warnings, the dissent opens the door to the routine use of preprinted forms to advise