Commonwealth v. Soto

• Decision Date: 06 April 2000
• Parties: COMMONWEALTH v. ORIOL SOTO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

431 Mass. 340

727 NE 2d 811

COMMONWEALTH v. ORIOL SOTO.

Supreme Judicial Court of Massachusetts, Middlesex.

April 6, 2000.

May 3, 2000.

Present: MARSHALL, C.J., ABRAMS, GREANEY, IRELAND, SPINA, & COWIN, JJ.

James E. McCall for the defendant.

David W. Cunis, Assistant District Attorney, for the Commonwealth.

Jennifer J. Smith, Committee for Public Counsel Services, Iris Gomez, Sarah Ignatius, Richard Iandoli, Mary Howells, & Gail Pendleton, for Massachusetts Law Reform Institute & others, amici curiae, submitted a brief.

ABRAMS, J.

We granted the Commonwealth's application for further appellate review to consider the issue of what constitutes an adequate immigration warning. See G. L. c. 278, § 29D. The defendant, Oriol Soto, asserts that his second motion for a new trial should have been allowed because the judge did not advise him properly as required by G. L. c. 278, § 29D. The Appeals Court reversed the order denying the motion for a new trial. Commonwealth v. Soto, 47 Mass. App. Ct. 914 (1999). We vacate the order denying the defendant's second motion for a new trial and remand for further proceedings consistent with this opinion. 1. Prior proceedings and facts. The defendant was charged with trafficking in excess of 200 grams of cocaine in 1987. After a trial by jury in 1988, the defendant was convicted and sentenced. In 1990, the defendant filed an assented-to motion for a new trial. After hearing, the defendant's assented-to motion for a new trial was allowed "in the interests of justice." In November, 1990, the defendant pleaded guilty to so much of the indictment as alleged possession of cocaine with the intent to distribute. The Commonwealth and defense counsel agreed to the defendant's being sentenced to time served. The defendant was released.

In 1997, the defendant filed a motion to vacate his 1990 plea alleging that the judge did not comply with G. L. c. 278, § 29D. A Superior Court judge denied the defendant's motion, endorsing the motion: "After review of all documents and transcripts, motion denied without hearing since defendant was warned by court." The defendant timely appealed.

The record reflects that, in 1990, when the defendant offered a plea to so much of the indictment as alleged possession of cocaine with the intent to distribute, the defendant was advised by the court as follows:

THE JUDGE: "Are you a citizen of the United States?"

THE DEFENDANT: "I'm not, but my wife and kids, they are legal, but I'm legal in this country since 1979, since 1981."

THE JUDGE: "All right, I am required to inform you that a conviction based on your plea of guilty could result in your being denied citizenship, or for that matter, being deported. Do you understand that?"

THE DEFENDANT: "Yes, I do."

THE JUDGE: "And understanding that, do you still wish to plead guilty?"

THE DEFENDANT: "Yeah."

Subsequent to that plea in May, 1997, the Immigration and Naturalization Service (INS) initiated proceedings to remove the defendant from the United States — he was in Puerto Rico at the time — because of his prior narcotics conviction. In the notice to appear, the INS classified him as an "arriving alien." 2. Discussion. General Laws c. 278, § 29D, in pertinent part, requires the judge to advise a person pleading to criminal charges as follows: "If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States."

The judge at the plea colloquy did not advise the defendant that he could be excluded from admission to the United States. The Commonwealth does not argue otherwise. Rather, it claims that all that is required is that a defendant know his guilty plea may have immigration consequences. Commonwealth v. Lamrini, 27 Mass. App. Ct. 662,...