Com. v. Mahadeo

• Decision Date: 15 April 1986
• Citation: 397 Mass. 314,491 N.E.2d 601
• Parties: COMMONWEALTH v. Gobin MAHADEO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 601

491 N.E.2d 601

397 Mass. 314

COMMONWEALTH v. Gobin MAHADEO.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Jan. 7, 1986.

Decided April 15, 1986.

Carole A.Z. Root, Boston, for defendant.

Natalea Skvir, Asst. Dist. Atty. (Pamela Hunt, Asst. Dist. Atty., with her), for Com.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

The defendant, Gobin Mahadeo, a resident alien, was charged with possession of marihuana with intent to distribute, in violation of G.L. c. 94C, § 32C (1984 ed.). At his arraignment in the District Court on September 1, 1983, the defendant pleaded not guilty and waived his right to a first-instance jury trial. On October 5, 1983, the defendant admitted to sufficient facts to warrant a finding of guilty. See Mass.R.Crim.P. 12(a)(3), 378 Mass. 866 (1979). He was sentenced to eighteen months in a house of correction, suspended for two years, and was fined a total of $500, which he paid. The defendant took no appeal for a trial de novo before a jury of six.

On December 31, 1984, the defendant filed a motion to vacate the finding of guilty and to order a new trial, together with a supporting affidavit. The defendant alleged that when he admitted to sufficient facts he was not informed as required by G.L. c. 278, § 29D (1984 ed.), ¹ that, if he was not a United States citizen, his conviction might result in his deportation, exclusion from the United States, or denial of naturalization. The defendant further stated that as a result of his conviction he was scheduled for a deportation hearing. The motion judge denied the motion to vacate the judgment, concluding that "the proceeding under which the defendant was found guilty is not governed by G.L.c. 278, § 29D." The defendant filed timely notice of appeal from the judge's order. We transferred the case from the Appeals Court on our own motion. We reverse.

The Commonwealth argues in support of the motion judge's order that G.L. c. 278, § 29D, by its clear language, is applicable only when a defendant pleads guilty or nolo contendere to a criminal charge. The Commonwealth further asserts that the Legislature intended to exclude admissions of sufficient facts at the jury-waived session of the District Courts from coverage by G.L. c. 278, § 29D, because, unlike pleas of guilty or nolo contendere, such admissions preserve a defendant's right to appeal for a trial de novo on the merits.

We agree that G.L. c. 278, § 29D, does not expressly govern admissions to sufficient facts, which technically are not pleas at all. See K.B. Smith, Criminal Practice and Procedure § 1202 (2d ed. 1983). Moreover, the right of a defendant who admits to sufficient facts in the first session of the District Courts to appeal for a trial de novo in the jury-of-six session is a significant feature distinguishing such an admission from a plea of guilty or nolo contendere. See Reporters' Notes to Mass.R.Crim.P. 12(a)(3), Mass.Ann.Laws, Rules of Criminal Procedure at 202-203 (Law. Co-op. 1979). In our view, however, a first tier admission to sufficient facts accompanied by a failure to appeal for a trial de novo is the functional equivalent of a guilty plea for purposes of G.L. c. 278, § 29D. See Commonwealth v. Hill, 20 Mass.App.Ct. 130, 132, 478 N.E.2d 169 (1985). The failure to take an appeal lends a finality to the resulting judgment of conviction identical to that which attends a conviction entered on a plea of guilty. See Commonwealth v. Duquette, 386 Mass. 834, 847, 438 N.E.2d 334 (1982); Commonwealth v. Mele, 20 Mass.App.Ct. 958, 958-959, 480 N.E.2d 647 (1985). ² This finality is lacking when the option of appealing for a trial de novo remains viable, but once that option is foreclosed a defendant who has admitted to sufficient facts at the jury-waived session is in the same posture as if he had pleaded guilty. The justifications for requiring that a defendant be advised that a criminal conviction may have an adverse impact on his immigration status are equally applicable in both instances. Therefore, to interpret G.L. c. 278, § 29D, to exclude admissions to sufficient facts in the first tier session by defendants who claim no appeal would, we think, defeat the intended statutory purpose. We conclude that the defendant in the case at bar should have received the requisite statutory advisement prior to his conviction. ³

The Commonwealth complains that the defendant has made no attempt to construct a record of his admission to sufficient facts for this court's review, but has relied solely on his assertion that no record of the District Court proceedings exists. The Commonwealth suggests that the defendant was obligated by the Rules of Appellate Procedure to provide some sort of record to aid our determination regarding whether the trial judge complied with G.L. c. 278, § 29D, by making the requisite inquiry. The statute is clear on this point, however, stating: "Absent a record that the Court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement." G.L. c. 278, § 29D. Thus, the Rules of Appellate Procedure notwithstanding, the burden was on the Commonwealth, if it wished to avoid operation of the statutory presumption, to provide a record of the proceedings affirmatively demonstrating that the defendant was advised that his plea might impair his immigration status. See Commonwealth v. Duquette, supra 386 Mass. at 842, 438 N.E.2d 334 (defendant's failure to ensure that record of District Court proceedings at which defendant admitted to sufficient facts was preserved does not shift constitutional burden on voluntariness of what was essentially a guilty plea). Because the Commonwealth provided no affirmative record that the required advisement was given, the presumption that it was not given is controlling.

General Laws c. 278, § 29D, provides that, when a defendant has not been advised, as required, that his conviction on criminal charges may result in his deportation, exclusion from the United States, or denial of naturalization, and he later shows that his conviction may have any of these enumerated consequences, the judgment shall be vacated on his motion. A defendant need not show that any of the enumerated consequences has actually resulted, nor, contrary to the Commonwealth's intimation that he would have pleaded differently to the criminal charges against him, had he received the statutory warning. In the instant case, the defendant alleged that, as a result of his conviction for possession of marihuana with intent to distribute, he was scheduled for a deportation hearing. ⁴ This uncontested allegation was sufficient, absent compliance with G.L. c. 278, § 29D, to mandate allowance of the defendant's motion to vacate the judgment of conviction. It follows that the judge's order denying that motion must be reversed. ⁵

On remand, the judge shall vacate the judgment of conviction and permit the defendant to withdraw his admission to sufficient facts and to enter a plea of not guilty. G.L. c. 278, § 29D. If the defendant chooses to enter such a plea, a trial will follow. ⁶

So ordered.

1 General Laws c. 278, §...