Opinion
12-P-1315
08-31-2015
COMMONWEALTH v. INES Y. BISONO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On December 20, 1996, the defendant, Ines Bisono, pleaded guilty to possession with intent to distribute cocaine, G. L. c. 94C, § 32A(a). Almost sixteen years later, on May 10, 2012, the defendant filed a motion for a new trial, in which she sought to vacate her aforementioned guilty plea. The defendant argued, among other things, that the plea judge failed to appropriately advise her of the immigration consequences of the plea deal as required by G. L. c. 278, § 29D, and that trial counsel provided ineffective assistance by failing to advise the defendant of the potential immigration consequences of the guilty plea. After careful consideration, the motion judge, who was not the plea judge, denied the defendant's motion without a hearing. Nearly two years later, on March 20, 2014, the defendant filed an amended motion for a new trial, which raised nearly identical claims to her first motion for a new trial, i.e., that the plea judge failed to give the defendant the required immigration warnings and that trial counsel provided ineffective assistance of counsel. Subsequently, the same motion judge denied the defendant's amended motion for a new trial without a hearing. We have consolidated the defendant's two appeals. We now affirm.
The defendant claims that the motion judge erred in denying her motion for a new trial and amended motion for a new trial, both of which sought to vacate the defendant's aforementioned guilty plea, because, in the defendant's view, the Commonwealth failed to meet its burden of proving that the defendant was appropriately advised of the possible immigration consequences of her guilty plea under G. L. c. 278, § 29D. We disagree.
"General Laws c. 278, § 29D, in pertinent part, requires the judge to advise a person pleading to criminal charges as follows: '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.'" Commonwealth v. Soto, 431 Mass. 340, 342 (2000), quoting from G. L. c. 278, § 29D. "The Commonwealth bears the burden of providing an 'affirmative record that the required advisement was given,' . . . and it retains that burden regardless of how much time has passed since the defendant's guilty plea." Commonwealth v. Marques, 84 Mass. App. Ct. 203, 205 (2013), quoting from Commonwealth v. Grannum, 457 Mass. 128, 132 (2010).
We discern no error or abuse of discretion in the motion judge's decision to deny both the defendant's motion for a new trial and her later amended motion for a new trial. Here, the record, and more specifically, the Superior Court's "Finding on Plea of Guilty" form, reflects that "[p]rior to accepting the above plea, the defendant was advised of the provision of G. L. c. 278, [§] 29D, as [inserted] by Chapter 383 of the Acts and Resolves of 1978 (As to aliens)." We think this plea form suffices to constitute a record within the meaning of the statute. See Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 351 (2009) ("A reconstructed record of the plea hearing will satisfy the requirement . . . . The elements of reconstruction may include [among other things] docket sheet entries and notations, the current testimony of witnesses, the plea judge's memory of the substance or circumstances of a colloquy recited in a memorandum of decision, and a statement by the plea judge of his or her customary practice concerning the alien warnings at the time of the disputed proceeding").
"In short, the Commonwealth met its burden of creating an affirmative record that the defendant received an immigration warning [and] '[a]ccordingly, the statutory presumption of nonadvisement, which is triggered only in the absence of "a record" that the deportation advisement was given, G. L. c. 278, § 29D, is not operative here.'" Commonwealth v. Marques, supra at 205-206, quoting from Commonwealth v. Rzepphiewski, 431 Mass. 48, 55 (2000). Having concluded that the presumption is inoperative in the present case, we agree with the motion judge that "the record evidence [albeit not overwhelming] establishes that the [plea judge] advised the defendant of the immigration consequences of her plea." In sum, as presently reconstructed, the record, including the Superior Court's plea form, "adequately establishe[d] that the [plea] judge gave" the immigration warnings required by G. L. c. 278, § 29D. Rzepphiewski, supra.
"In order to be entitled to withdraw [her] admission due to the absence of immigration warnings, the defendant must show that '[her] plea and conviction may have or has had one of the enumerated consequences' set forth in the immigration warnings: deportation, exclusion from admission to the United States, or denial of naturalization." Commonwealth v. Grannum, supra, quoting from G. L. c. 278, § 29D. As our case law makes clear, it is the defendant's burden to "demonstrate more than a hypothetical risk of such a consequence, [and] that [she] actually faces the prospect of its occurring." Commonwealth v. Berthold, 441 Mass. 183, 185 (2004). Here, we conclude that the defendant has not met her burden. A review of the record reveals that, in both of the defendant's affidavits in support of her motion for a new trial, and in support of her amended motion for a new trial, the defendant claimed only that she is "here on a green card and [has] dreams of becoming a naturalized citizen of the United States." However, the record does not reflect that the defendant actually has been denied naturalized citizenship as a result of her drug conviction, and "[the defendant] offered no evidence to the motion judge that removal proceedings have been initiated against [her] or that [she] has been denied naturalization because of [her] narcotics conviction. Merely being 'subject' to removal or that [the defendant] 'may' be denied citizenship is insufficient." Commonwealth v. Casimir, 68 Mass. App. Ct. 257, 259 (2007), citing Commonwealth v. Rzepphiewski, supra at 50 n.6.
The defendant raises another claim related to the plea. Specifically, relying heavily on Padilla v. Kentucky, 559 U.S. 356 (2010), and Commonwealth v. Sylvain, 446 Mass. 422 (2013), the defendant claims that the motion judge erred in denying both of her motions, because trial counsel failed to advise the defendant of the possible immigration consequences of her plea. We reject this. As noted above, the defendant pleaded guilty on December 20, 1996. In Sylvain, supra at 423-424, the Supreme Judicial Court concluded that "defendants whose State law convictions were final after April 1, 1997, may attack their convictions collaterally on Padilla grounds." Therefore, as the Commonwealth correctly argues in its brief, the rule articulated in Padilla, supra at 362-364, and further refined in Sylvain, does not apply.
As noted above, the defendant raised an ineffective assistance claim in both her first motion for a new trial and her second and later amended motion for a new trial. As the Commonwealth correctly points out, the defendant's ineffective assistance claim raised in the her amended motion for a new trial is nearly identical to the ineffective assistance claim raised in her first motion for a new trial, albeit for minor changes to her attorney's affidavit and the defendant's misguided claim, raised for the first time on appeal, that the Supreme Judicial Court's decision Sylvain entitles the defendant to relief. As we conclude that the claims raised in both the defendant's first motion for a new trial and second amended motion for a new trial are meritless, we pass over the question whether the ineffective assistance claims raised in the second motion are waived.
To the extent that the defendant makes a separate, third, and final claim, raised in her amended motion for a new trial, that this court should "hold that [under art. 12 of the Massachusetts Declaration of Rights, the] right to accurate advice about immigration consequences should be retroactive to April 24, 1996," and consequently, find that the holdings of Padilla and Sylvain are retroactive to the defendant's date of plea, i.e., December, 1996, we decline to do so.
Judgment affirmed.
Orders denying motion for new trial and amended motion for new trial affirmed.
By the Court (Kafker, C.J., Berry, & Cohen, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: August 31, 2015.