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14-P-668                                                 Appeals Court

                   COMMONWEALTH   vs.   FRANK VALDEZ.1


                            No. 14-P-668.

     Middlesex.        February 3, 2015. - September 14, 2015.

              Present:    Cypher, Hanlon, & Agnes, JJ.


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.


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


    HANLON, J.     The defendant appeals from the orders denying

his motions to vacate a 1989 guilty plea, and for

reconsideration.    He argues that his plea was invalid because

the plea judge failed to advise him, as required by G. L.

    1
        Also known as Franklin Falcone.
                                                                     2


c. 278, § 29D, of all the possible immigration consequences from

such a plea -- including, particularly, the possibility of

exclusion from admission if he left the United States and

attempted to return.   We recognize that, on this record, the

Commonwealth is unable to prove that the defendant received the

required warning.   However, because the defendant has not been

excluded from the United States, and the United States

Immigration and Customs Enforcement (ICE) has taken no steps to

accomplish that, we affirm.

    In support of his motion to vacate his plea, the defendant

filed an affidavit reciting that he was born in the Dominican

Republic, but was admitted to the United States as a "lawful

resident alien" in 1985.   He received a high school graduate

equivalency degree from a school in the Bronx, New York, and had

been "gainfully employed by a number of employers including a

subcontractor for the U.S. Navy at the Brooklyn Navy Yard."     At

the time he filed the motion, he had been in a sixteen-year

relationship with a United States citizen, and they had three

children, ages fourteen, twelve, and nine years old.     He owned

an automobile sales business and resided in Connecticut.

    The defendant pleaded guilty on January 25, 1989, to one

count of larceny of a motor vehicle and was sentenced to five
                                                                   3


years of imprisonment.2   On November 4, 2013, he filed a motion

to "vacate judgment," citing G. L. c. 278, § 29D.   He also

asserted that he had consulted an immigration attorney to

determine whether he could become a citizen of the United States

and, given his "desire to travel outside of the United States,

especially to visit with friends and family who[m he had] not

seen in many years," whether he could do so.   According to the

defendant, the attorney told him that, because of his 1989

conviction, he was deportable, was ineligible to become a

naturalized citizen, and would be excluded from the United

States if he left and tried to return.3


     2
       The docket indicates that the sentence was to be served at
the Massachusetts Correctional Institution at Concord.
     3
       The defendant also filed an affidavit from the attorney,
who described himself as "specializing in Immigration and
Naturalization Law." The affidavit is included in the record
and it describes in painstaking detail, and with specific
reference to relevant Federal statutes, the attorney's
conclusion that, as a result of the defendant's conviction, he
"is now therefore deemed an 'aggravated felon' pursuant to
Section 101(a)(43)(G) of the Immigration and Nationality Act
(hereinafter 'INA'), codified at 8 U.S.C.A. § 1101(a)(43)(G).
This conviction independently renders him deportable from the
United States pursuant to INA § 237(a)(2)(A)(iii), codified at 8
U.S.C.A. § 1227(a)(2)(A)(iii), as a 'resident alien' convicted
of an aggravated felony any time after admission." The attorney
also opined that the defendant was deportable independently
because his conviction was for a crime "traditionally
interpreted under the immigration laws as a crime involving
moral turpitude. . . . Pursuant to INA § 237(a)(2)(A)(i),
codified at 8 U.S.C.A. § 1227(a)(2)(A)(i), [the defendant] is
also deportable from the United States for having been convicted
of a crime involving moral turpitude, for which a sentence of
one (1) year or longer may be imposed, committed within five (5)
                                                                   4


    In support of its opposition to the defendant's motion, the

Commonwealth filed an affidavit from the plea judge (who since

had retired).   In the affidavit, the judge stated that, although

he did not recall the defendant's case specifically, during the

time period when he accepted the plea, the judge had used a

"script" for providing immigration warnings before accepting a

guilty plea.    As a result, the judge was certain that he had

"informed the defendant that, if he . . . were not a citizen of

the United States, the guilty plea might lead to his . . .

deportation or prevent him . . . from becoming a naturalized

citizen."   The judge added that, at some point after 1988, he

had "added a warning that the guilty plea might also prevent

reentry into the United States, but [he could not] recall

precisely when [he] did so."

    The motion judge denied the defendant's motion to vacate

his plea without a hearing.    She found that, with respect to

reentry into the United States, the defendant had failed to

establish that he would be subject to a written policy of

exclusion should he choose to leave the United States and desire


years after the date of his admission to the United States." As
a result, the attorney concluded that, should the defendant
apply for naturalization, his application would be denied, and
that if "the defendant traveled outside of the United States and
attempted to reenter the United States, he would be deemed
inadmissible to the United States pursuant to INA
§ 212(a)(2)(A)(i)(I), codified at 8 U.S.C.A.
§ 1182(a)(2)(A)(i)(I), and 'removal proceedings' would be
commenced against him."
                                                                   5


to reenter; his showing was "no more than a hypothetical risk."

On January 10, 2014, the defendant's motion for reconsideration

was denied by the motion judge; he timely appealed both orders.

    "[I]f the court fails to give immigration warnings and the

defendant 'at any time shows that his plea and conviction may

have one of the enumerated consequences, the [c]ourt . . . shall

vacate the judgment, and permit the defendant to withdraw the

plea' (emphasis supplied).   G. L. c. 278, § 29D.   The statute is

equally explicit that, absent a record that the warnings were

provided, 'the defendant shall be presumed not to have received

the required advisement.'"   Commonwealth v. Grannum, 457 Mass.

128, 133 (2010), quoting from G. L. c. 278, 29D.    The statute

unambiguously places on the Commonwealth the burden of proving

that the § 29D requirements were "satisfied, irrespective of the

amount of time that may have passed between a conviction and a

defendant's motion to withdraw his plea or his admission to

sufficient facts."   Ibid., quoting from Commonwealth v. Jones,

417 Mass. 661, 664 (1994).

    That is the situation here.   There appears to be no record

of the defendant's 1989 plea colloquy, and the Commonwealth's

attempt to reconstruct the record makes it clear that, while

there is reason to believe that the defendant was warned that he

could be subject to deportation and denial of naturalization,

the plea judge was not certain that he had advised the defendant
                                                                      6


that he could be excluded from admission to the United States.

"Therefore, the defendant is entitled to a presumption that he

did not receive [that] immigration warning[], and the

Commonwealth has not satisfied its burden to establish that the

presumption has been overcome."     Id. at 134.

    However, even when it is clear that the defendant did not

receive the proper warning, the "remedy clause of G. L. c. 278,

§ 29D, is triggered only when a defendant can . . . demonstrate

that he 'may' become subject to one of the immigration

consequences enumerated in the statute.      [The court has]

construe[d] this requirement to 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. Casimir, 68 Mass. App. Ct. 257, 259 (2007),

quoting from Commonwealth v. Berthold, 441 Mass. 183, 185

(2004).

    In Berthold, although the defendant had not received all of

the warnings required by the statute, he had been told that he

"could be deported."     441 Mass. at 184.   "Because the defendant

was warned of the precise immigration consequence that he

subsequently faced, the motions to withdraw his guilty pleas

were properly denied."     Id. at 186-187.   In Casimir, the

Commonwealth made no claim that the presumption applied that the

warnings had been provided to the defendant (who sought to
                                                                    7


become a United States citizen), and the court assumed, "without

deciding, that [he] was not provided the immigration warning."

Casimir, supra at 258-259.   Nonetheless, "[b]ecause there ha[d]

been no showing that the defendant [was] actually facing any of

the enumerated consequences that trigger the allowance of a

motion to withdraw a guilty plea pursuant to G. L. c. 278,

§ 29D, i.e., deportation, exclusion from the United States, or

the denial of naturalization, his claim [was] not ripe.   Thus,

it was error for the . . . judge to have allowed his motion."

Id. at 259.

    Here, the defendant claimed that, as a consequence of his

plea, he is deportable, is ineligible for naturalization, and

would be denied reentry to the United States.   Because the

Commonwealth established that the defendant received proper

warnings about his risk of deportation and denial of

naturalization, to succeed here, the defendant must show that he

faces the consequence of exclusion.

    Larceny is a crime involving moral turpitude.   See

Commonwealth v. Cano, 87 Mass. App. Ct. 238, 245 n.15 (2015),

quoting from Morasch v. Immigration & Naturalization Serv., 363

F.2d 30, 31 (9th Cir. 1966) ("[P]etty or grand larceny, i.e.,

stealing another's property qualifies [as a crime involving

moral turpitude"]).   As a result of the 1989 plea, the defendant

not only is classified as deportable based on an aggravated
                                                                    8


felony conviction,4 but also qualifies as inadmissible upon

reentry resulting from the conviction of a crime involving moral

turpitude.5    See 8 U.S.C. § 1227(a)(2)(A)(iii) (2012); 8 U.S.C.

§ 1182(a)(2)(A)(i)(I) (2012).    In light of the foregoing, the

defendant very likely would be excluded from reentry if he

travels outside the United States.    Cf. Grannum, supra at 135-

136.

       The question before us is whether the defendant's showing

is sufficient to meet his burden.    On the one hand, we have in

mind the recent teaching of the Supreme Judicial Court, albeit

in a different context, that "[a]fter the 1996 effective date of

amendments to the 1952 Immigration and Nationality Act, . . .

'if a noncitizen has committed a removable offense . . . , his

removal is practically inevitable,' subject to limited

exceptions."    Commonwealth v. DeJesus, 468 Mass. 174, 180


       4
       "Any alien who is convicted of an aggravated felony at any
time after admission is deportable." 8 U.S.C.
§ 1227(a)(2)(A)(iii) (2012). "The term 'aggravated felony'
means . . . (G) a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprisonment
[is] at least one year." 8 U.S.C. § 1101(a)(43) (2012).
       5
       "[A]ny alien convicted of, or who admits having committed,
or who admits committing acts which constitute the essential
elements of -- (I) a crime involving moral turpitude (other than
a purely political offense) or an attempt or conspiracy to
commit such a crime . . . is inadmissible." 8 U.S.C.
§ 1182(a)(2)(A)(i) (2012). Notably, the exception to this
section is inapplicable here, as the sentence imposed on the
defendant was more than one year. See 8 U.S.C.
§ 1182(A)(2)(A)(ii)(II) (2012).
                                                                    9


(2014), quoting from Padilla v. Kentucky, 559 U.S. 356, 363-364

(2010).    Arguably, requiring the defendant, despite his

attorney's informed advice, to risk exclusion by leaving the

country, including his family and his business, to test the

issue whether he actually would be excluded is too great a

burden.    Nor is it reasonable to require a motion judge, in the

context of a hearing on a motion to withdraw a plea, to

determine whether the defendant actually wished to leave the

country,6 or to predict, with any hope of accuracy, what actions

ICE officials might take at some future date after unforeseen

national and international events.

     On the other hand, in most of the recent cases where a

defendant's motion under § 29D was allowed, he already was

experiencing the consequences for which he had not been warned.

See, e.g., Commonwealth v. Soto, 431 Mass. 340, 342 (2000),

where the "judge at the plea colloquy did not advise the

defendant that he could be excluded from admission to the United

States."    After his plea, "the Immigration and Naturalization

Service (INS) initiated proceedings to remove the defendant from

the United States -- he was in Puerto Rico at the time --

because of his prior narcotics conviction.    In the notice to

     6
       It simply is unclear how that could be determined -- with
the purchase of an airline ticket, documentation that the
defendant's mother was actually dying, or evidence that, all his
life, the defendant had said that he wanted to see the Taj Mahal
someday?
                                                                      10


appear, the INS classified him as an 'arriving alien.'"       Id. at

341.       As a result, the court ordered that the defendant's motion

to withdraw his guilty plea be allowed and vacated the judgment.

Id. at 342.      Compare Commonwealth v. Mahadeo, 397 Mass. 314, 318

(1986) (defendant scheduled for deportation hearing);

Commonwealth v. Marques, 84 Mass. App. Ct. 203, 203-204 (2013)

(defendant denied reentry following a trip to Cape Verde).       In

Commonwealth v. Grannum, supra at 136, the court noted that the

defendant had not established that he "has been taken into

custody by Federal immigration authorities, or that he is

currently in deportation proceedings, or has been notified by

Federal immigration authorities that he is now subject to

deportation, or that, as a result of the challenged conviction

(alone or in conjunction with other convictions), the express

written policy of the Federal immigration authorities calls for

the initiation of deportation proceedings against him."7


       7
       The defendant did submit to the motion judge a memorandum
from ICE on the subject of "Civil Immigration Enforcement
Priorities for the Apprehension, Detention, and Removal of
Aliens." The memorandum "outline[d] civil immigration
enforcement priorities of [ICE] as they relate to the
apprehension, detention, and removal of aliens." We note that
the memorandum does not address the issue of exclusion in
circumstances like the defendant's.

     In addition, even if the enforcement priorities described
in the memorandum could reasonably be read as applying to the
decision whether to exclude someone, the memorandum in fact
calls for the exercise of prosecutorial discretion in cases such
as the defendant's, stating, "The rapidly increasing number of
                                                                  11


    Finally, we look at Commonwealth v. Rodriquez, 70 Mass.

App. Ct. 721 (2007).   In Rodriquez, as in this case, the

defendant had been advised at the time of her initial plea "of

the consequence of deportation but [the judge] failed to warn

that her guilty plea additionally 'may have the consequences of

. . . exclusion from admission to the United States, or denial

of naturalization, pursuant to the laws of the United States,'

as mandated by G. L. c. 278, § 29D, inserted by St. 1978,

c. 383."   70 Mass. App. Ct. at 721.   That defendant was then

"the subject of deportation proceedings," id. at 723, and this

court "agree[d] with the motion judge that because the defendant

[then] also face[d] immigration consequences about which she was

not warned (denial of readmission), the plain language of the

statute require[d] that the defendant be permitted to withdraw

her guilty plea," id. at 722.   More specifically, we concluded

that "the defendant's conviction -- a drug-related 'aggravated

felony' for purposes of immigration law -- results in the

automatic, and now permanent, denial of readmission to the

United States, see 8 U.S.C. § 1182(a)(9)(A) (2000), . . . and



criminal aliens who may come to ICE's attention heightens the
need for ICE employees to exercise sound judgment and discretion
consistent with these priorities when conducting enforcement
operations, making detention decisions, making decisions about
release on supervision pursuant to the Alternatives to Detention
Program, and litigating cases. Particular care should be given
when dealing with lawful permanent residents, juveniles, and the
immediate family members of U.S. citizens" (emphasis supplied).
                                                                   12


that this is an 'enumerated consequence' of the defendant's plea

about which she was not warned."    Ibid.

     The present case is a close one.   It is difficult to

imagine what other showing this defendant could have made to

show "that his plea and conviction may have . . . one of the

enumerated consequences."   G. L. c. 278, § 29D, as appearing in

St. 2004, c. 225, § 1.   On the other hand, there is no pending

proceeding to exclude him from the United States, nor is there a

pending deportation proceeding as there was in Rodriquez that

would increase the likelihood that he would be excluded.

     On balance we are constrained to conclude that the motion

judge's decisions were proper.   See Grannum, 457 Mass. at 136

("Mere eligibility for deportation is not a sufficient basis for

relief under G. L. c. 278, § 29D.   Nor is it sufficient to show

that, if the Federal government were to initiate deportation

proceedings, the defendant almost inevitably would be

deported").8

                                    Orders denying motions to
                                      vacate judgment and for
                                      reconsideration affirmed.




     8
       While we affirm the orders denying the defendant's motions
at this time, nothing in this opinion should prevent the
defendant from filing another motion, should he be able to meet
the Grannum test at some future date.
