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14-P-52                                                   Appeals Court

                     COMMONWEALTH   vs.   JAIME CORTEZ.


                               No. 14-P-52.

          Suffolk.       October 7, 2014. - December 30, 2014.

              Present:    Cohen, Wolohojian, & Blake, JJ.


Practice, Criminal, Admission to sufficient facts to warrant
     finding, Continuance without a finding.



     Complaint received and sworn to in the Chelsea Division of
the District Court Department on April 9, 2004.

     A motion for a new trial, filed on June 10, 2013, was heard
by Timothy H. Gailey, J.


     Adriana Contartese for the defendant.
     Priscilla Guerrero (Amanda Teo, Assistant District
Attorney, with her) for the Commonwealth.


    WOLOHOJIAN, J.       On December 1, 2004, the defendant tendered

a plea in which he admitted to sufficient facts to support a

charge of assault and battery by means of a dangerous weapon,
                                                                   2


and received a continuance without a finding (CWOF).1

Approximately one month earlier, G. L. c. 278, § 29D, had been

amended to require that defendants be specifically advised by

the plea judge that an admission to sufficient facts may have

adverse immigration consequences if the defendant is not a

United States citizen.2   Before that amendment, the statute

referred only to pleas of guilty or nolo contendere, and

required that the judge advise the defendant only that a

"conviction" might result in immigration consequences.     See

G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254.

     In 2013, the defendant moved to vacate the judgment3 and, in

support of that motion, submitted an affidavit in which he



     1
       The defendant was placed on probation, which he completed
without incident. It appears undisputed that the defendant has
no other criminal record.
     2
       "The court shall not accept a plea of guilty, a plea of
nolo contendere, or an admission to sufficient facts from any
defendant in any criminal proceeding unless the court advises
such defendant of the following: '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 supplied). G. L. c. 278, § 29D, as appearing
in St. 2004, c. 225, § 1.
     3
       Although the defendant styled his motion as one to vacate
the judgment, it is more properly viewed as one to withdraw his
plea and for a new trial pursuant to Mass.R.Crim.P. 30, as
appearing in 435 Mass. 1501 (2001). See Commonwealth v. Huot,
                                                                    3


attested that the plea judge did not inform him that an

admission to sufficient facts and CWOF might result in the

enumerated immigration consequences, but instead advised him

only that a conviction might do so.4   Given the passage of time,

there is no transcript of the plea.5   However, other

contemporaneous evidence suggests that the new warning may not

have been given.6   Specifically, the judge's signed certification

on the "green sheet" states:

     "I further certify that the defendant was informed and
     advised that if he or she is not a citizen of the
     United States, a conviction of the offense with which
     he or she 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" (emphasis supplied).




380 Mass. 403, 406 (1980); Commonwealth v. Sherman, 451 Mass.
332, 334 (2008). The judge properly treated it as such.
     4
       The defendant also stated that his lawyer similarly failed
to advise him that an admission to sufficient facts and CWOF
could have adverse immigration consequences. There is no
affidavit from that lawyer, who had since died.
     5
       Rule 211(A)(4) of the Special Rules of the District Courts
provides that recordings of pleas (and other types of
proceedings) may be destroyed after two and one-half years.
This rule was necessitated by the difficulty of storing vast
amounts of paper or tapes. In our age of digital recordings,
the continuing need for the rule is less apparent.
     6
       This is not to suggest that the contemporaneous record
indicates that no warning was given. In fact, to the contrary,
the docket sheet and the "green sheet" amply demonstrate that an
alien warning was given by the judge. It is only the language
of that warning that is at issue in this appeal.
                                                                4


The defendant's contemporaneous signed acknowledgement of

alien warning (also on the green sheet) is to the same

effect:

    "I understand that if I am not a citizen of the United
    States, conviction of this offense 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" (emphasis
    supplied).

    The Commonwealth, which has the burden of providing an

"affirmative record that the required advisement was

given," presented no countervailing evidence in opposition

to the motion to vacate.    Commonwealth v. Mahadeo, 397

Mass. 314, 318 (1986).     Nor did it put forward affirmative

evidence to show the specific language of the immigration

warning given by the judge was correct.     Instead, at the

hearing on the motion, the Commonwealth asked the motion

judge (who had also been the plea judge) to draw upon his

recollection of his customary practice at the time.     The

defendant pointed out that the green sheet signed by both

the judge and the defendant tracked the pre-2004 language

of § 29D.   In response, the judge stated that, "regardless

of what the green sheet said, this Court's practice for

years before that [2004] statutory change was to include

both convictions and continuations without a finding in the
                                                                   5


language on my own accord because I was somewhat familiar

with the change in immigration policy."7

     In his written decision denying the motion, the judge

found that it was his

     "practice, although not required by statute, at the
     time in question to use language in the immigration
     warning to state expressly that this disposition could
     result in the 3 enumerated adverse consequences, not
     relying solely on the statutory reference to a
     'conviction.'"8

     In essence, we are asked to decide whether the judge's

finding distinguishes this case from Commonwealth v.

Marques, 84 Mass. App. Ct. 203 (2013).     We conclude that it

     7
       In the continuing discussion of the tension between the
judge's recollection and the signed green sheet, the following
exchange took place, which did not help explain or eliminate the
apparent discrepancy:

          Defense counsel: "So my question for the Court,
     respectively [sic], is if the Court did make that
     advisement regularly, why did the Court not include on the
     green sheet just a little parenthetical note for the
     record, to keep the record . . . ."

          The court: "Because Counsel we expect motions to be
     brought within a reasonable period of time while the tape
     of the proceeding is still available."
     8
       Although the written memorandum could be read to
indicate that the judge misapprehended the requirements of
the statute as amended in 2004, and as applicable to this
defendant, it is clear from the judge's comments at the
motion hearing that he was well aware of the statutory
change. In light of the judge's comments at the hearing,
his memorandum must be understood to reference his practice
to give the warning for dispositions such as the
defendant's even before it was required by the 2004
amendment to the statute.
                                                               6


does.    In Marques, there was no transcript of the plea and

the contemporaneous green sheet indicated that the warning

did not comply with the statutorily mandated language.

There, the plea judge was not the motion judge, and the

Commonwealth did not present any information concerning the

plea judge's customary practice.    In those circumstances,

we concluded that the plea judge's contemporaneous

certification on the green sheet should be taken at face

value.   Id. at 206.

    Here, by contrast, the motion judge (who, as we have

noted, was also the plea judge) made a specific finding

that his customary practice was to give the correct

statutory warning, even though his certification on the

green sheet does not so indicate.    Compare Commonwealth v.

Podoprigora, 46 Mass. App. Ct. 928, 930 (1999) (motion

judge was also plea judge and recalled his standard

practice; docket sheet indicated that alien warnings had

been given).   Although it would have been helpful had the

judge explained or resolved the discrepancy, we can

reasonably infer that he found that the preprinted language

on the green sheet did not accurately reflect the actual

language he used during the plea colloquy.

                                     Order denying motion to
                                       withdraw guilty plea
                                       affirmed.
