Commonwealth vs. Kevin E. Grannum, June 18, 2010
Motion to Withdraw Admission to Sufficient Facts for Failure to Provide Immigration Warnings
Facts
In 1986 the defendant was charged with receiving stolen property worth less than $100 and several motor vehicle offenses. The defendant either pleaded guilty or admitted to sufficient facts with respect to all the charges. Findings of guilty were entered for each charge and fines were imposed. In 1999 the defendant moved for a new trial on the basis that the trial judge failed to warn him of the possible immigration consequences of his admissions. Two court dates in district court were set but nothing happened. Later, in 2006, the defendant filed a motion to withdraw his admission to sufficient facts based again on the failure to provide immigration warnings. This motion was denied, and the defendant filed a timely notice of appeal. In 2007 the defendant moved in district court for reconsideration of his 2006 motion arguing that in both the 1999 and 2006 motions, he had established that he was eligible for relief under G.L. c. 278, § 29D. The defendant also included a letter from another attorney to his attorney stating the belief that the defendant’s admission in the prior case and a subsequent conviction for malicious destruction of property made him eligible for deportation. This motion was denied in the district court.
The appeal from the denial of the motion from 2006 was consolidated with the appeal of the 2007 ruling in the appeals court. The appeals court affirmed the district court’s rulings, and the SJC granted leave to obtain further appellate review. The SJC affirmed the denial of the motion to withdraw the admission to sufficient facts and the denial of the motion for reconsideration.
Discussion
The SJC stated the language of G.L. c. 278, § 29D in effect at the time of the defendant’s admissions was, "[a]bsent a record that the [c]ourt provided the [immigration] advisement ... the defendant shall be presumed not to have received the required advisement.". The court rejected the Commonwealth’s argument that there should be a presumption of regularity similar to that which occurs under challenges about the voluntariness of a guilty plea pursuant to Mass. R.Crim. P. 30(b). The court definitively stated that because such a presumption of regularity would be in direct contradiction to the statutory language of G.L. c. 278, § 29D, it did not apply and that a defendant would be entitled to the presumption that the warnings were not given if there is no record indicating that they were.
The court went on to say that merely showing that the warnings were not given is not enough to justify a withdrawal of admission to sufficient facts or a guilty plea, but that the defendant need also show that, "his plea and conviction may have or has had one of the enumerated consequences" set forth in the immigration warnings: deportation, exclusion from admission to the United States, or denial of naturalization. The defendant must show that he may face or that he is facing one of these risks, and to do so the defendant must present more than a “hypothetical risk of such a consequence”. The SJC discussed that the defendant did not prove that he was facing any actual deportation proceedings or that he intended to leave the country. The letter from the attorney not representing the defendant did nothing more than show that he may hypothetically face a risk, but did not prove that he actually faced one. The court went on to say that absent any actual deportation proceedings commenced against a defendant taken by the federal government, or an express written policy calling for the initiation of deportation proceedings, nothing more than a hypothetical risk exists. Therefore the defendant failed to meet his burden of showing that he actually faced an immigration related consequence as a result of his admission.
A separate concurring opinion of three justices was written agreeing with the decision, but not with the statement that a showing that Federal immigration authorities have adopted an express written policy calling for the initiation of deportation proceedings based on the challenged offense is sufficient to demonstrate more than a hypothetical risk of deportation.
Decision
Denial of the defendant’s motion to withdraw admission to sufficient facts due to the absence of immigration warnings, and the denial of the defendant’s motion to reconsider were both affirmed by the SJC.
- Prepared by AEK
