Commonwealth v. Marques
Commonwealth v. Marques
Opinion of the Court
In 2005, the defendant admitted to sufficient facts to support a complaint charging him with assault by means of a dangerous weapon (glass bowl), assault and battery, and threats to commit a crime.
At the time of the defendant’s pleas, G. L. c. 278, § 29D, required that defendants be advised by a judge, “If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States” (emphasis added). G. L. c. 278, § 29D, as amended through St. 2004, c. 225, § 1. “To comply with the statute, the judge must give the alien warning, preferably by reading the single quoted sentence directly from the statute.” Commonwealth v. Hilaire, 437 Mass. 809, 819 (2002).
The defendant does not contend that the plea judge failed to provide an immigration warning of any sort. Rather, he contends that there is no evidence that he was informed that his particular pleas, i.e., an admission to sufficient facts, could have immigra
The docket sheet has an entry on the date of the plea that “alien warning (279 § 29D [sic
This does not end the matter, however, because we must still determine whether the Commonwealth “adequately established] that the judge gave the deportation advisement mandated by the statute.”
“that if he . . .is not a citizen of the United States, a conviction of the offense with which he . . . was 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.”
This warning did not comport with the amended statutory language;
There is nothing in the record to permit the motion judge (or us) to take the plea judge’s contemporaneous certification at anything less than face value. For example, the Commonwealth did not supply an affidavit from the plea judge as to his memory of the substance of the colloquy, or of his regular and routine practice concerning the substance of the immigration warnings he delivered at the time of the defendant’s pleas. See Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928, 930 (1999) (motion judge was plea judge and noted his own standard practice
Similarly, absent a record to support it, we cannot accept the Commonwealth’s argument that the certification did not reflect the judge’s actual warning, but was simply a by-product of the fact that the District Court was working through a backlog of obsolete green sheets. Although we recognize the chronic financial constraints on our trial courts, we cannot on that basis alone conclude that the judge’s signed certification was incorrect. Nor, in the face of the plea judge’s certification, can the Commonwealth rest upon the presumption that the judge complied with the amended statute. The “presumption of regularity that applies to collateral challenges to guilty pleas under” Mass.R. Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), does not apply to challenges, such as this one, brought pursuant to G. L. c. 278, § 29D. Commonwealth v. Grannum, 457 Mass, at 133.
For all of these reasons, the order denying the defendant’s motion to withdraw his guilty pleas is reversed.
So ordered.
The charges arose from an incident of domestic violence against the defendant’s then wife.
The defendant apparently completed his probation without incident.
The defendant was a legal resident of the United States, but a citizen of Cape Verde.
The Commonwealth does not dispute that the 2005 charges were the defendant’s first criminal matter. Nor does the Commonwealth dispute that the defendant’s only other criminal matter is a later charge of operating under the influence. There is no dispute that the defendant, having been denied readmission to the United States, has met his burden of showing that he faces one of the immigration consequences enumerated in G. L. c. 278, § 29. See Commonwealth v. Hilaire, 437 Mass. 809, 813-814 (2002); Commonwealth v. Grannum, 457 Mass. 128, 134 (2010).
The defendant’s affidavit stated that he did not recall the judge advising him that his change of pleas might cause him to become inadmissible to the United States.
The defendant also argued that his counsel did not adequately inform him of the potential immigration consequences of his pleas. This argument is not urged on appeal.
There is no doubt that the defendant was entitled to the particular advisement. Approximately eight months before the defendant tendered his pleas, G. L. c. 278, § 29D, was amended to require that defendants be advised specifically that an admission to sufficient facts may have certain immigration consequences. See St. 2004, c. 225, § 1, effective October 27, 2004. The amendment followed the Supreme Judicial Court’s conclusion that the prior version of the statute, which did not include a warning about the potential consequences of admitting to sufficient facts, “is inadequate, and even potentially misleading.” Commonwealth v. Villalobos, 437 Mass. 797, 803 (2002).
The statutory citation should be to G. L. c. 278, § 29D, but the error appears to be merely typographical.
“A green sheet is a form ‘promulgated pursuant to Rule 4 of the District/ Municipal Court Rules of Criminal Procedure and used to tender a plea under the procedures set forth in G. L. c. 278, § 18.’ ” Commonwealth v. Haskell, 76 Mass. App. Ct. 284, 287 n.3 (2010), quoting from Commonwealth v. Peterson, 51 Mass. App. Ct. 779, 782 n.6 (2001). The form is also used if the defendant tenders to the court any “other requested disposition.” Dist./Mun. Cts.R.Crim.P. 4(c).
This is a factual inquiry that we make on the same documentary record available to the motion judge, who, as we have noted, was not the judge who took the pleas.
Obviously, had the transcript been available, it would have superseded the contents of the green sheet had they been in conflict. Commonwealth v. Hilaire, 437 Mass, at 818 n.5.
This was also the specific warning of which the Supreme Judicial Court disapproved in Commonwealth v. Villalobos, 437 Mass, at 803.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.