Commw. v. Medeiros, 121799, P-173

• Decision Date: 17 December 1999
• Docket Number: P-173
• Citation: 720 N.E.2d 845,48 Mass. App. Ct. 374
• Parties: (Mass.App.Ct. 1999) COMMONWEALTH v. LUIS A. MEDEIROS. No.: 98-
• Court: Appeals Court of Massachusetts

720 N.E.2d 845 (Mass.App.Ct. 1999)

COMMONWEALTH v. LUIS A. MEDEIROS.

No.: 98-P-173

MASSACHUSETTS COURT OF APPEALS

Argued November 19, 1999

December 17, 1999

Bristol County.

Present: Perretta, Laurence, & Gelinas, JJ.

Practice, Criminal, Plea. Alien.

Complaints received and sworn to in the New Bedford Division of the District Court Department

on November 27, 1995, and February 5, 1996, respectively.

A motion to vacate guilty pleas, filed on November 26, 1996, was heard by John B. Leonard, J.

The case was submitted on briefs.

Brian J. Sylvia & Frederick O. Watt for the defendant.

David Keighley, Assistant District Attorney, for the Commonwealth.

LAURENCE, J.

This is the defendant's consolidated appeal from the denial of his motion to

vacate his May, 1996, guilty pleas to two counts of possession of a class A substance with intent

to distribute, in violation of G. L. c. 94C, 32. The defendant concedes that during the plea

colloquy the trial judge advised him that his pleas might result in immigration consequences,

including deportation, in the form required by G. L. c. 278, 29D. Even so, the defendant claims

that that warning was inadequate in light of subsequent events.

As a consequence of 1996 Federal legislation,¹ the defendant asserts that he now faces

mandatory, rather than discretionary possible, deportation. At the time of the change of plea

hearing, he contends that neither his counsel nor the court could have foreseen the applicability

of that recent Federal legislation to his case.² Because both his counsel and the court were

therefore incapable of advising him that he faced certain, rather than possible, deportation, the

defendant argues that it was impossible for him to have made a knowing and voluntary plea.

These contentions are unpersuasive, and we affirm the denial of the defendant's motion. The

judge had no obligation to anticipate changes in the operation of Federal immigration law. "The

immigration ramifications of a conviction are not considered to be direct consequences of being

confined. Rather, they are collateral and contingent consequences of a plea, and, but for G. L. c.

278, 29D . . . there would be no obligation on a judge to warn or inform the defendant of such

consequences in order to render the plea a voluntary and intelligent one." Commonwealth v.

Hason, 27 Mass. App. Ct. 840, 843 (1989). "The purpose of the advisement set forth in the

statute is to assure that a defendant knows that a plea of guilty may have an effect on his alien

status." Commonwealth v. Lamrini, 27 Mass. App. Ct. 662, 666 (1989) (emphasis added).

By its explicit terms, the statute requires a judge to inform the defendant, as the judge correctly

did here, that a plea of guilty "may have the consequence[] of deportation," among other things.

"Beyond that, in the absence of special circumstances, a judge need not explain to the defendant

the intricacies of the immigration laws." Commonwealth v. Hason, supra at 844. This is not a

case involving special circumstances. For a judge to be required to give a more involved

advisement as to immigration consequences, or to warrant a defendant's withdrawal of his plea

on the ground of insufficient understanding of those consequences, the special circumstances

alleged must have existed at the time the defendant offered his plea. See ibid (listing examples of

special circumstances).

Here, the decision to apply the change in Federal immigration law retroactively came after the

defendant offered his guilty pleas, and the defendant concedes that, at the time of the plea

hearing, neither his counsel nor the judge could reasonably have foreseen the applicability of

such new legislation to the defendant's case. On this record, there is no basis for concluding that

the defendant received inaccurate advice regarding the immigration consequences of his pleas or

misunderstood his rights and risks as they existed at the time he offered his pleas.³

This is also not a case in which a defendant who "had reasonable grounds for believing that his

plea would have no [immigration] impact," suddenly finds himself facing certain deportation.⁴

Ibid. The defendant does not contest the fact that, at the time he proffered his guilty pleas, he had

been counseled that deportation was a possibility. Nor does he suggest that he had reason to be

optimistic regarding the likelihood that he, standing convicted of two aggravated felonies, could

persuade the Federal immigration authorities to exercise their discretion in his favor had he been

afforded the traditional opportunity to apply for a waiver of deportation.

Thus, the change in Federal immigration law and subsequent decision to apply that change

retroactively did not expose the defendant to a new contingency he did not already know he

faced when he tendered his pleas. Accordingly, he can be lawfully deemed to have accepted the

possibility that that very contingency, deportation, would in fact come to pass.

Order denying motion to vacate guilty pleas affirmed.

1. The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.

1214, which was enacted just before his conviction, particularly 440(d) (8 U.S.C. 1182[c])

thereof, later construed by the United States Attorney General in Matter of Soriano, BIA Int.

Dec. No. 3289, 16 Imm. Rptr. (MB) B1-227, B1-239 (Feb. 1, 1997), to have retroactive

application.

2. A review of Federal case law reveals that the controversy regarding the retroactivity of the

1996 legislation has related primarily to the legislation's applicability to persons whose crimes

and convictions occurred prior to its enactment, particularly those persons whose applications for

a waiver of deportation were pending at the time of enactment. See, e.g., Goncalves v. Reno, 144

F.3d 110 (1st Cir. 1998), cert. denied sub nom. Reno v. Pereira Goncalves, 119 S. Ct. 1140

(1999), superseded by statute as stated in Berlanga v. Reno, 56 F. Supp. 2d 751 (S.D. Tex. 1999).

Here, the defendant committed the underlying criminal acts prior to the enactment of the new

legislation, but both the convictions and the initiation of deportation proceedings occurred

afterward.

3. Despite the defendant's claim to the contrary and the Commonwealth's silence on this point, it

is conceivable that at the time of the plea hearing the defendant's counsel could have foreseen,

and therefore may well have advised the...