IMMIGRATION CONSEQUENCES OF A PLEA

In Commonwealth v. Cortez, the defendant appealed a motion to withdraw a plea that was denied at the trial court level.  The Court of Appeals ruled that the immigration warning given by the judge during the plea colloquy was adequate, since it was the judge’s customary practice in providing such warnings. At the trial court level, 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, and received a continuance without a finding (CWOF). Approximately one month earlier, the statute (G.L. c.278, §29D), had been amended to require that defendants be specifically advised by the judge that an admission to sufficient facts may have adverse immigration consequences if the defendant is not a United States citizen. 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.” In his motion to withdraw his plea, filed nine years after the plea, the defendant “attested that the plea judge did not inform him that an admission to sufficient facts and CWOF might result in immigration consequences, but instead advised him only that a conviction might do so.” No transcript of the plea colloquy was available in the present litigation and the documentary record (i.e., the “green sheet”) “suggest[ed] that the new warning may not have been given.” However, the plea judge (who was also the judge on the defendant’s motion to withdraw his plea) stated at the motion hearing and in his memorandum of decision that his customary practice at the time of the plea was to inform defendants that adverse immigration consequences could result from both a conviction and a CWOF pursuant to an admission to sufficient facts. The judge’s statement based on his personal recollections satisfied the Appeals Court that the immigration warning given to the defendant was adequate.

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