Commonwealth v. Valdez (Lawyers Weekly No. 10-127-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12040 COMMONWEALTH vs. FRANK VALDEZ.[1] Middlesex. April 4, 2016. – August 17, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2] 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. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Scott W. Kramer for the defendant. Jamie Michael Charles, Assistant District Attorney, for the Commonwealth. Jennifer Klein & Wendy S. Wayne, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. GANTS, C.J. Under G. L. c. 278, § 29D, where a judge fails to advise a defendant during the plea colloquy that conviction may have the consequence of exclusion from admission to the United States, the conviction must be vacated upon motion of the defendant if the defendant shows that his or her conviction “may have” that consequence. The issue on appeal is what the defendant must show to establish that his conviction “may have” the consequence of exclusion from admission to the United States. We conclude that a defendant satisfies this burden by showing (1) that he has a bona fide desire to leave the country and reenter, and (2) that, if the defendant were to do so, there would be a substantial risk that he or she would be excluded from admission under Federal immigration law because of his or her conviction. Because we conclude that the defendant has met this burden, we vacate the defendant’s conviction and remand the case for a new trial.[3] Background. The defendant was born in the Dominican Republic and is a citizen of that country. In 1985, he was admitted to the United States as a lawful permanent resident alien. In January, 1989, he pleaded guilty in the Superior Court to an indictment alleging larceny of a motor vehicle, in violation of G. L. c. 266, § 28, and was sentenced to a prison term of five years at the Massachusetts Correctional Institution at Concord. The defendant is now a resident of Connecticut and […]