alien warning in Massachusetts

2019In Hilaire , we held that "[t]o comply with the statute, the judge must give the alien warning, preferably by reading the single quoted sentence directly from the statute." Hilaire , 437 Mass. at 819 , 777 N.E.2d 804 .

2019In Hilaire , we held that "[t]o comply with the statute, the judge must give the alien warning, preferably by reading the single quoted sentence directly from the statute." Hilaire , 437 Mass. at 819 , 777 N.E.2d 804 .

2011Because the defendant’s motion for a new trial comes more than five years after his guilty pleas were entered, and the tape recording of that proceeding has been destroyed pursuant to court rules, see note 7, supra, the burden is on the defendant to “present evidence sufficient to rebut a presumption that the plea proceeding was conducted correctly.” Commonwealth v. Grannum, 457 Mass. 128, 133 (2010), citing Commonwealth v. Lopez, 426 Mass. 657, 661-662, 664-665 (1998).

1998The statute thus precludes us from applying to this case the rationale of Commonwealth v. Lopez, 426 Mass. 657, 660-663 (1998); Commonwealth v. Grant, 426 Mass. 667, 670-671 (1998); and Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 47-49 (1997), none of which involved the alien warning and subsequent deportation or naturalization consequences.

2001Thus, for example, in Commonwealth v. Pryce, 429 Mass. at 558 , it was sufficient to establish that the warnings had been given where the docket sheet notation indicated that the plea hearing had occurred because (1) the motion judge stated that he knew the notation “indicate[d] that the defendant did receive the required immigration warnings,” and (2) “contemporaneous court records involving other charges against this [particular] defendant” showed that the alien warnings were twice given, thereby ensuring that the defendant was “aware that his conviction could result in his deportation.” Als

1999Cf. Commonwealth v. Pryce, 429 Mass. 556, 558-559 (1999) (order denying motion to withdraw plea affirmed where the judge acknowledged that his practice was to give the alien warning in every case; the defendant was aware that his deportation could be a consequence of his plea; and his deportation had already taken place before he sought to vacate his conviction).

2001The Court, however, went on to note that it had not considered “what effect, if any, the presumption of regularity that we recently articulated in Commonwealth v. Grant, 426 Mass. 667, 660-61 (1998), and Commonwealth v. Lopez, 426 Mass. 657, 662 (1998), may have on a statutory presumption of G.L.c. 278, §29D.” Id. at 559.

1998The statute thus precludes us from applying to this case the rationale of Commonwealth v. Lopez, 426 Mass. 657, 660-663 (1998); Commonwealth v. Grant, 426 Mass. 667, 670-671 (1998); and Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 47-49 (1997), none of which involved the alien warning and subsequent deportation or naturalization consequences.

1980Cf. Truax v. Raich, 239 U.S. 33, 38-39 (1915) (allowing an alien to challenge a statute prohibiting his employer from retaining more than a certain proportion of alien employees).

1979See e.g, Truax v. Raich, 239 U.S. 33, 39 (1915) (right of an alien to challenge a statute requiring employers to hire a large percentage of citizens), and American Can Co. v. Milk Control Bd., 313 Mass. 156,160 (1943) (right of manufacturer of milk cartons to challenge an order requiring retailers to make a surcharge on milk sold in cartons).

2011Because the defendant’s motion for a new trial comes more than five years after his guilty pleas were entered, and the tape recording of that proceeding has been destroyed pursuant to court rules, see note 7, supra, the burden is on the defendant to “present evidence sufficient to rebut a presumption that the plea proceeding was conducted correctly.” Commonwealth v. Grannum, 457 Mass. 128, 133 (2010), citing Commonwealth v. Lopez, 426 Mass. 657, 661-662, 664-665 (1998).

2007See Commonwealth v. Soto, 431 Mass. 340, 342 (2000) (“The Legislature has put the three required warnings in quotation marks, and each of them is required to be given so that a person pleading guilty knows exactly what immigration consequences his or her plea may have”). 8 “The statute further provides that, if the judge fails to give the statutory warning and the defendant ‘later at any time shows that his plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to . . . enter a plea of not guilt

2007See Commonwealth v. Soto, 431 Mass. 340, 342 (2000) (“The Legislature has put the three required warnings in quotation marks, and each of them is required to be given so that a person pleading guilty knows exactly what immigration consequences his or her plea may have”). 8 “The statute further provides that, if the judge fails to give the statutory warning and the defendant ‘later at any time shows that his plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to . . . enter a plea of not guilt

2002See Commonwealth v. Mahadeo, 397 Mass. 314, 316-317 (1986).

2002General Laws c. 278, § 29D, provides that a judge must give the alien warnings when accepting “a plea of guilty or nolo contendere.” The statute “does not expressly govern, admissions to sufficient facts, which technically are not pleas at all.” Commonwealth v. Mahadeo, supra at 316 .

2002The alien warnings set forth in the statute are intended “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).

2001L. [c.] 278, § 29D.” 4 The disposition of motions to vacate judgment and for a new trial is left to the sound discretion of the motion judge, see Commonwealth v. Albert A., a juvenile, 49 Mass. App. Ct. 269, 270 (2000); see also Commonwealth v. Smith, 381 Mass. 141, 142 (1980), and will not be overturned unless there has been an abuse of discretion or other significant error of law.

2001L. [c.] 278, § 29D.” 4 The disposition of motions to vacate judgment and for a new trial is left to the sound discretion of the motion judge, see Commonwealth v. Albert A., a juvenile, 49 Mass. App. Ct. 269, 270 (2000); see also Commonwealth v. Smith, 381 Mass. 141, 142 (1980), and will not be overturned unless there has been an abuse of discretion or other significant error of law.

1998The statute thus precludes us from applying to this case the rationale of Commonwealth v. Lopez, 426 Mass. 657, 660-663 (1998); Commonwealth v. Grant, 426 Mass. 667, 670-671 (1998); and Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 47-49 (1997), none of which involved the alien warning and subsequent deportation or naturalization consequences.

1979See e.g, Truax v. Raich, 239 U.S. 33, 39 (1915) (right of an alien to challenge a statute requiring employers to hire a large percentage of citizens), and American Can Co. v. Milk Control Bd., 313 Mass. 156,160 (1943) (right of manufacturer of milk cartons to challenge an order requiring retailers to make a surcharge on milk sold in cartons).