Commonwealth v. Petit-Homme

Decision Date07 August 2019
Docket NumberSJC-12636
Citation482 Mass. 775,128 N.E.3d 62
Parties COMMONWEALTH v. Denver PETIT-HOMME.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Edward Crane, Cambridge, for the defendant.

Erin D. Knight, Assistant District Attorney, for the Commonwealth.

Emma Winger, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

KAFKER, J.

The defendant, Denver Petit-Homme, currently faces deportation based in part upon an admission to sufficient facts for a finding of guilty on two counts of assault by means of a dangerous weapon. During the plea colloquy conducted in connection with that admission, the judge warned the defendant about certain "practically inevitable" immigration consequences that would arise if the defendant did not have United States citizenship and "if ... the crime admitted to is one that presumptively mandates removal from the United States" (emphasis added), as required by Mass. R. Crim. P. 12 (c) (3) (A) (iii) (b), as appearing in 470 Mass. 1501 (2015). The judge neglected, however, to recite the following, more general words of warning prescribed by G. L. c. 278, § 29D :

"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."

The same statute requiring oral delivery of this warning at all criminal plea colloquies further provides:

"If the court fails so to advise the defendant, and he later at any time shows that his plea and conviction may have or has had one of the enumerated consequences, ... the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty, plea of nolo contendere, or admission of sufficient facts, and enter a plea of not guilty."

Id. Approximately one and one-half years after the plea colloquy, following the commencement of deportation proceedings, the defendant unsuccessfully moved to withdraw the admission based on the contention that the judge failed to provide the statutory warning.

The defendant appealed, and we granted his subsequent application for direct appellate review to consider whether the immigration consequences warning articulated by the plea judge during the colloquy sufficed "so to advise" the defendant, as required by G. L. c. 278, § 29D. The defendant argues that it did not, and that reversal is thus required where the challenged admission led to the pending removal proceedings. We agree. Given the complexity of Federal immigration law, the offense-specific warning provided to the defendant in the instant case is confusing, and it is neither equivalent to, nor an adequate substitute for, the more general advisory that G. L. c. 278, § 29D, entitles every criminal defendant to receive. The order denying the defendant's motion to withdraw his plea is therefore reversed, and the matter is remanded for further proceedings consistent with this opinion.1

Facts and procedural history. On August 26, 2016, a criminal complaint issued from the Dorchester Division of the Boston Municipal Court Department, charging the defendant with two counts of assault by means of a dangerous weapon and two counts of making a threat to commit a crime. The charges stemmed from an incident that occurred on August 6, 2016, in which the defendant approached two men, called their attention to a gun in the waistband of the defendant's pants, and threatened to shoot them.

On January 10, 2017, the defendant tendered an admission to sufficient facts for a finding of guilty on all charges (admission). During the oral colloquy that the judge conducted prior to accepting the defendant's admission, the judge stated, substantially as required by Mass. R. Crim. P. 12 (c) (3) (A) (iii) (b) :

"[I]f you are not a citizen of the United States and the crime admitted to is one that presumptively mandates removal from the United States, and the federal officials decide to seek removal, acceptance by this Court of your admission will make it practically inevitable that this admission will result in deportation, exclusion from admission or denial of naturalization under the laws of the United States."

The judge then asked whether the defendant understood the warning, and the defendant replied, "Yes." When asked by the court, defense counsel confirmed that "the charges, the elements that need to be proven, maximum penalties, possible defenses, options other than admitting to sufficient facts, as well as potential consequences including, but not limited to, the immigration consequence" had been explained to the defendant by counsel. The judge found a factual basis for the defendant's admission and pronounced it "made freely and voluntarily with full knowledge of the consequences." After accepting the admission, the court continued the case without a finding for three years and imposed a coterminous program of supervised probation.2

On June 13, 2017, following an evidentiary hearing, the same judge who had accepted the defendant's admission found that the defendant had committed new criminal offenses in violation of applicable probation terms. Accordingly, the court revoked the continuance without a finding, entered a finding of guilty as to all charges, and sentenced the defendant to serve two years in a house of correction.

Approximately thirteen months later, the defendant filed a motion to withdraw his admission and vacate the court's finding of sufficient facts, arguing that the plea judge "failed to provide the immigration warning required by [ G. L. c. 278, § 29D ], and the defendant now faces deportation as a result." In support of the motion, among other things, the defendant filed a "Notice to Appear" in removal proceedings, dated April 13, 2017, and issued to the defendant by the United States Department of Homeland Security (removal notice). Among the factual allegations in support of deportation asserted in the removal notice, the government included the defendant's January 10, 2017, admission on the charge of assault by means of a dangerous weapon.3

On August 15, 2018, the plea judge presided at a hearing on the motion.4 At the outset of the hearing, the plea judge questioned the "need to be giving every defendant two warnings which essentially is saying the same thing." Despite defense counsel's attempt to distinguish the more general statutory language from the narrower, offense-specific warning required by procedural rule, the court's subsequent questions suggest that confusion persisted.5 Following argument from both defense counsel and the Commonwealth, the plea judge took the matter under advisement. On September 21, 2018, the court denied the defendant's motion in a margin endorsement order, without explanation.

Discussion. While the immigration consequences of a criminal conviction or guilty plea are not themselves criminal sanctions, they may weigh even more heavily on noncitizen defendants than incarceration. Accordingly, judges in Massachusetts are instructed to provide immigration warnings to criminal defendants during plea colloquies by both statute and court rule.

General Laws c. 278, § 29D, entitles every criminal defendant proffering a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts to receive prior verbal warning from a judge. Specifically,

"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."

Id. This statute is unusual in that "[t]he Legislature set forth in the statute the precise language of the warning that the judge was to give a defendant before accepting a plea." Commonwealth v. Valdez, 475 Mass. 178, 183, 56 N.E.3d 183 (2016). This carefully scripted advisory ( § 29D warning) is set off by quotation marks within the statute's text. "The purpose of this requirement is to ensure that defendants entering pleas are made aware of the potential for adverse immigration consequences." Commonwealth v. Berthold, 441 Mass. 183, 184, 804 N.E.2d 355 (2004). See Commonwealth v. Hilaire, 51 Mass. App. Ct. 818, 821, 752 N.E.2d 737 (2001), S.C., 437 Mass. 809, 777 N.E.2d 804 (2002) (statute's purpose is to "ensure that, while the noncitizen who pleads guilty does so at his own peril, he should not do so without fair warning [of the potential immigration consequences]").

Rule 12 of the Massachusetts Rules of Criminal Procedure, which governs the form and content of plea colloquies, also requires a judge to inform the defendant of "potential immigration consequences of the plea." Mass R. Crim. P. 12 (c) (3) (A) (iii) & 12 (d) (3) (A) (iii), as appearing in 470 Mass. 1501 (2015).

The first advisory required by rule 12 is, essentially, an abbreviated version of the § 29D warning and serves the same purpose:

"that, if the defendant is not a citizen of the United States, the guilty plea, plea of nolo contendere, or admission may have the consequence of deportation, exclusion of admission, or denial of naturalization."

Mass. R. Crim. P. 12 (c) (3) (A) (iii) (a) & 12 (d) (3) (A) (iii) (a) (rule [a] warning).6

The second immigration consequences advisory required as part of a rule 12 plea colloquy is

"that, if the offense to which the defendant is pleading guilty, nolo contendere, or admitting to sufficient facts is under federal law one that presumptively mandates removal from the United States and federal officials decide to seek removal, it is practically inevitable that this conviction
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  • Commonwealth v. Al Kenani
    • United States
    • Appeals Court of Massachusetts
    • September 30, 2021
    ...that Mass. R. Crim. P. 12 (c) (3) (A) (iii) (b), as appearing in 470 Mass. 1501 (2015), once required. See Commonwealth v. Petit-Homme, 482 Mass. 775, 788, 128 N.E.3d 62 (2019). The plea judge dismissed the conspiracy charge and sentenced the defendant to one year of probation on the other ......
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    ...L. c. 278, § 29D. Just as a green sheet signed by a defendant does not cure a deficiency in a judge's verbal § 29D warning, see Petit-Homme, 482 Mass. at 783, so too judge's failure to sign one of the green sheets is not dispositive of whether he gave the required verbal § 29D warning. We v......
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    ...guilty, a plea of nolo contendere, or an admission to sufficient facts to receive prior verbal warning from a judge." Commonwealth v. Petit-Homme, 482 Mass. 775, 779 (2019). The warning specified by statute is:"If you are not a citizen of the United States, you are hereby advised that the a......
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