Commonwealth v. Tokarev (Lawyers Weekly No. 11-102-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-405 Appeals Court COMMONWEALTH vs. ALEKSANDR TOKAREV. No. 14-P-405. Hampden. January 15, 2015. – August 10, 2015. Present: Fecteau, Wolohojian, & Massing, JJ. Practice, Criminal, Plea, Assistance of counsel. Complaint received and sworn to in the Springfield Division of the District Court Department on September 6, 2006. A motion to vacate conviction, filed on November 12, 2013, was heard by Robert A. Gordon, J. Cynthia Cullen Payne, Assistant District Attorney, for the Commonwealth. Daniel P. Morrissey for the defendant. WOLOHOJIAN, J. Federal immigration authorities have informed the defendant that he is deportable based on his admission seven years ago to sufficient facts to support a charge of possession of a Class B substance. In order to avoid deportation, the defendant moved to vacate his plea on the ground that his lawyer failed to advise him of the immigration consequences of his plea.[1],[2] During a nonevidentiary hearing on the defendant’s motion, the judge (who had also been the plea judge) noticed that the defendant had not signed the portion of the “green sheet” that applies when the court rejects a defendant’s proposed disposition.[3],[4] In addition, neither the box next to the statement, “Defendant WITHDRAWS the tendered plea or admission,” nor the box next to the statement, “Defendant ACCEPTS judge’s disposition set forth above,” had been checked. The judge brought the uncompleted portions of the green sheet to the parties’ attention and solicited additional briefing. In response, the defendant filed an amended motion — unaccompanied by affidavits[5] — in which he argued that the plea was constitutionally deficient because the green sheet did not reflect that he accepted the judge’s disposition.[6] In ruling on the amended motion, the judge found that he was “unable to state that the Defendant made a decision to accept or reject the exceeding of the Defendant’s recommendation. In addition to the defects in the ‘plea form’ [green sheet], the Magistrate [on the docket sheet], failed to mark or ‘check’ the box under ‘Disposition Method’ to indicate: Guilty Plea or Admission to Sufficient Facts accepted after Colloquy and [G. L. c. 278 § 29D] warning.” On these bases, the judge allowed the defendant’s amended motion, without reaching the defendant’s original claim that counsel had failed to advise him of the immigration consequences of his plea. The transcript of the plea colloquy […]