Commonwealth v. Hilaire

Brown, J.

(concurring in the result). I do not believe it is necessary to decide whether the preprinted form may permissibly supplement defective immigration warnings. All that needs to be done here is to focus on the absence of evidence in the record that the defendant was made aware of the elements of the crimes to which he was admitting. See Commonwealth v. Correa, 43 Mass. App. Ct. 714, 717, 719 (1997). “There must be an explanation by the judge or defense counsel of the elements of the crimes charged or an admission by the defendant to the facts constituting those crimes .... This requirement can be satisfied in one of several ways: (1) by the judge explaining to the defendant the elements of the crime; (2) by counsel’s representation that she has explained to the defendant the elements he admits by his plea; or, (3) by the defendant’s stated admission to facts recited during the colloquy which constitute *826the unexplained elements.” Id. at 717. See Commonwealth v. Robbins, 431 Mass. 442, 450-451 (2000); Commonwealth v. Barry, 51 Mass. App. Ct. 9, 11 n.2 (2001).

According to the transcript of the hearing on the admissions to sufficient facts, there was no explanation by the judge of the elements of the charged crimes, nor was there an assertion by defense counsel that she had explained the crimes to the defendant. While the prosecutor did recite the facts the Commonwealth would attempt to prove at trial, the defendant never admitted to, or even acknowledged, these alleged facts. Compare Commonwealth v. DeCologero, 49 Mass. App. Ct. 93, 97-98 (2000). Contrast Commonwealth v. Baker, 46 Mass. App. Ct. 915 (1999). Rather, after the recitation, the judge asked defense counsel — not the defendant — if she had “[a]ny questions regarding these matters.” She responded that she did not. The judge then proceeded to discuss disposition with the prosecutor and defense counsel.

This is not a case where the charges, through repetition and some explanation, became self-evident. See Commonwealth v. Wiswall, 43 Mass. App. Ct. 722, 723 (1997); Commonwealth v. DeCologero, supra. The judge did not state all the crimes to which the defendant was admitting. He did mention two, i.e., larceny of a motor vehicle, and operating after suspension. However, the simple, unadorned stating of these charges was not clear or specific enough adequately to inform the defendant of the elements of the charged crimes. See Commonwealth v. Pixley, 48 Mass. App. Ct. 917, 918 (2000); Commonwealth v. Barry, supra at 10 (finding error because “the defendant heard only a recitation of the names or titles of [the charged] crimes, and was taken to have ‘stipulated’ to unstated facts supposed to ‘base’ the complaints”).

Finally, the portions of the preprinted “Waiver of Rights” forms that defense counsel and the plea judge signed, thereby asserting they had informed the defendant of his various rights, lack the specificity to qualify as an affirmative statement that either defense counsel or the judge had informed the defendant of the precise nature or elements of the charges against him. *827The forms state only that either the judge or defense counsel1 has informed the defendant of “the above-stated provisions of law regarding the defendant’s waiver of jury trial and other rights so as to enable the defendant to tender his or her plea of guilty or admission knowingly, intelligently, and voluntarily.” See Appendix. This lack of specificity is especially telling where we have the benefit of reviewing a transcript2 from which it is quite clear that little, if anything, actually was said regarding the precise elements of the charged crimes.3

In short, this case comes down to the defendant boldly “stating,” by the means of signing preprinted forms, that he is “aware” of the nature and elements of the charges against him with no colloquy by the judge on the nature and elements of the offenses, no specific certification by counsel on the point, no indication as to the extent of his “awareness,” and no disclosure of the source of the information upon which his “awareness” is based. This is not sufficient.

The statements attested to by the judge and defense counsel are similar in the aspects most relevant here. See Appendix.

In general, a transcript of the actual proceedings should be accorded greater evidentiary weight than a preprinted form which serves only to memorialize, in a general way, what is thought to have occurred. Those cases in which the courts have discussed what constitutes a “record” of proceedings in the context of G. L. c. 278, § 29D, have done so of necessity, i.e., in the absence of a transcript. See Commonwealth v. Rzepphiewski, 431 Mass. 48, 52-54 (2000), and cases cited. See also Commonwealth v. Ashmon, 434 Mass. 1005 (2001).

The preprinted language on the form states “I am aware of the nature and elements of the charge or charges to which I am entering my guilty plea or admission.” See Appendix. The form does not require the defendant to certify whether counsel, the judge, or some other entity is the source of his enlightenment. Moreover, the form does not require him to articulate the nature and extent of his “awareness.” In passing, I make the additional observation that such a form might well pose a problem to a defendant whose first language is not English.