Commonwealth v. Valdez (Lawyers Weekly No. 11-143-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-668 Appeals Court COMMONWEALTH vs. FRANK VALDEZ.[1] No. 14-P-668. Middlesex. February 3, 2015. – September 14, 2015. Present: Cypher, Hanlon, & Agnes, JJ. 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. Scott W. Kramer for the defendant. Jamie Michael Charles, Assistant District Attorney, for the Commonwealth. HANLON, J. The defendant appeals from the orders denying his motions to vacate a 1989 guilty plea, and for reconsideration. He argues that his plea was invalid because the plea judge failed to advise him, as required by G. L. c. 278, § 29D, of all the possible immigration consequences from such a plea — including, particularly, the possibility of exclusion from admission if he left the United States and attempted to return. We recognize that, on this record, the Commonwealth is unable to prove that the defendant received the required warning. However, because the defendant has not been excluded from the United States, and the United States Immigration and Customs Enforcement (ICE) has taken no steps to accomplish that, we affirm. In support of his motion to vacate his plea, the defendant filed an affidavit reciting that he was born in the Dominican Republic, but was admitted to the United States as a “lawful resident alien” in 1985. He received a high school graduate equivalency degree from a school in the Bronx, New York, and had been “gainfully employed by a number of employers including a subcontractor for the U.S. Navy at the Brooklyn Navy Yard.” At the time he filed the motion, he had been in a sixteen-year relationship with a United States citizen, and they had three children, ages fourteen, twelve, and nine years old. He owned an automobile sales business and resided in Connecticut. The defendant pleaded guilty on January 25, 1989, to one count of larceny of a motor vehicle and was sentenced to five years of imprisonment.[2] On November 4, 2013, he filed a motion to “vacate judgment,” citing G. L. c. 278, § 29D. He also asserted that he had consulted an immigration attorney to determine whether he could become a citizen […]