Posts tagged "Marques"

Commonwealth v. Marques (Lawyers Weekly No. 11-107-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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     12‑P‑662                                        Appeals Court   COMMONWEALTH  vs.  PAULO A. MARQUES. No. 12‑P‑662. Plymouth.     May 7, 2013.  ‑  August 28, 2013. Present:  Kafker, Green, & Wolohojian, JJ.   Practice, Criminal, Plea, Admission to sufficient facts to warrant finding, Presumptions and burden of proof.  Alien.       Complaint received and sworn to in the Brockton Division of the District Court Department on March 28, 2005.   A motion to withdraw a guilty plea was heard by Paul C. Dawley, J.     Edward P. Harrington for the defendant. Audrey Anderson Kachour, Assistant District Attorney, for the Commonwealth.       WOLOHOJIAN, J.  In 2005, the defendant admitted to sufficient facts to support a complaint charging him with assault by means of a dangerous weapon (glass bowl), assault and battery, and threats to commit a crime.[1]  A judge of the District Court accepted the defendant’s change of pleas, continued the cases without a finding, and imposed eleven months of probation.  Six years later, following a trip to Cape Verde, the defendant was denied reentry into the United States because of the disposition of the earlier criminal charges.  The defendant consequently filed a motion to withdraw his pleas, arguing that the judge did not comply with G. L. c. 278, § 29D, in that he did not advise the defendant that the particular disposition of his case, i.e., an admission to sufficient facts, could have immigration consequences.,  After a nonevidentiary hearing, a judge (who was not the plea judge) denied the motion in an endorsement order.  We reverse because the Commonwealth did not meet its burden of establishing that the defendant received the mandatory statutory immigration warning. At the time of the defendant’s pleas, G. L. c. 278, § 29D, required that defendants be advised by a judge, “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 added).  G. L. c. 278, § 29D, as amended through St. 2004, c. 225, § 1.  “To comply with the statute, the judge must give the alien warning, preferably by reading the single quoted sentence directly from the statute.”  Commonwealth v. Hilaire, 437 Mass. 809, 819 (2002). […]

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Posted by Massachusetts Legal Resources - August 28, 2013 at 9:33 pm

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