No. 98-P-173.Appeals Court of Massachusetts. Bristol.November 19, 1999.
December 17, 1999.
Present: Perretta, Laurence, Gelinas, JJ.
Practice, Criminal, Plea. Alien.
In the circumstances of a plea proceeding, neither defense counsel not the judge could reasonably have forseen the applicability of recent Federal legislation to the case that would mandate deportation upon the defendant’s conviction, and the judge’s plea colloquy, in the form required by G.L.c. 278, § 29D, advising the defendant that his plea might result in immigration consequences, was adequate. [375-377]
omplaints received and sworn to in the New Bedford Division of the District Court Department on November 27, 1995, and February 5, 1996, respectively.
A motion to vacate guilty pleas, filed on November 26, 1996, was heard by John B. Leonard, J.
The case was submitted on briefs.
Brian J. Sylvia Frederick O. Watt for the defendant.
David Keighley, Assistant District Attorney, for the Commonwealth.
LAURENCE, J.
This is the defendant’s consolidated appeal from the denial of his motion to vacate his May, 1996, guilty pleas to two counts of possession of a class A substance with intent to distribute, in violation of G.L.c. 94C, § 32. The defendant concedes that during the plea colloquy the trial judge advised him that his pleas might result in immigration consequences, including deportation, in the form required by G.L.c. 278, § 29D. Even so, the defendant claims that that warning was inadequate in light of subsequent events.
Page 375
As a consequence of 1996 Federal legislation,[1] the defendant asserts that he now faces mandatory, rather than discretionary possible, deportation. At the time of the change of plea hearing, he contends that neither his counsel nor the court could have foreseen the applicability of that recent Federal legislation to his case.[2] Because both his counsel and the court were therefore incapable of advising him that he faced certain, rather than possible, deportation, the defendant argues that it was impossible for him to have made a knowing and voluntary plea. These contentions are unpersuasive, and we affirm the denial of the defendant’s motion. The judge had no obligation to anticipate changes in the operation of Federal immigration law. “The immigration ramifications of a conviction are not considered to be direct consequences of being confined. Rather, they are collateral and contingent consequences of a plea, and, but for G.L.c. 278, § 29D . . . there would be no obligation on a judge to warn or inform the defendant of such consequences in order to render the plea a voluntary and intelligent one.” Commonwealth v. Hason, 27 Mass. App. Ct. 840, 843 (1989). “The purpose of the advisement set forth in the statute is to assure that a defendant knows that a plea of guilt may have an effect on his alien status.” Commonwealth v Lamrini, 27 Mass. App. Ct. 662, 666 (1989) (emphasis added).
By its explicit terms, the statute requires a judge to inform the defendant, as the judge correctly did here, that a plea of guilty “may have the consequence of deportation,” among other things. “Beyond that, in the absence of special circumstances,
Page 376
a judge need not explain to the defendant the intricacies of the immigration laws.” Commonwealth v. Hason, supra at 844. This is not a case involving special circumstances. For a judge to be required to give a more involved advisement as to immigration consequences, or to warrant a defendant’s withdrawal of his plea on the ground of insufficient understanding of those consequences, the special circumstances alleged must have existed at the time the defendant offered his plea. See ibid (listing examples of special circumstances).
Here, the decision to apply the change in Federal immigration law retroactively came after the defendant offered his guilty pleas, and the defendant concedes that, at the time of the plea hearing, neither his counsel nor the judge could reasonably have foreseen the applicability of such new legislation to the defendant’s case. On this record, there is no basis for concluding that the defendant received inaccurate advice regarding the immigration consequences of his pleas or misunderstood his rights and risks as they existed at the time he offered his pleas.[3]
This is also not a case in which a defendant who “had reasonable grounds for believing that his plea would have no [immigration] impact,” suddenly finds himself facing certain deportation.[4] Ibid. The defendant does not contest the fact that, at the time he proffered his guilty pleas, he had been counseled that
Page 377
deportation was a possibility. Nor does he suggest that he had reason to be optimistic regarding the likelihood that he, standing convicted of two aggravated felonies, could persuade the Federal immigration authorities to exercise their discretion in his favor had he been afforded the traditional opportunity to apply for a waiver of deportation.
Thus, the change in Federal immigration law and subsequent decision to apply that change retroactively did not expose the defendant to a new contingency he did not already know he faced when he tendered his pleas. Accordingly, he can be lawfully deemed to have accepted the possibility that that very contingency, deportation, would in fact come to pass.
Order denying motion to vacate guilty pleas affirmed.
Page 378