Commonwealth v. Manzi

89 Mass.App.Ct. 1134

55 N.E.3d 432 (Table)

COMMONWEALTH

v.Guiseppe MANZI.

No. 14–P–1178.

Appeals Court of Massachusetts.

July 26, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On June 10, 1993, the defendant, Guiseppe Manzi, admitted to sufficient facts to warrant a conviction for assault and battery in violation of G.L. c. 165, § 13A. On April 10, 2014, more than twenty years later, a District Court judge granted the defendant's motion to set aside his guilty plea and request for a new trial.² The Commonwealth appeals.³ Because the defendant has not demonstrated that he is entitled to relief under G.L. c. 278, § 29D, we reverse.

Background. After admitting to sufficient facts warranting a conviction of assault and battery, the defendant's case was continued without a finding for one year. Given the considerable lapse in time between the defendant's plea and his motion to set it aside, the record of the plea hearing is no longer available, and it is not clear whether the judge advised the defendant of the possible immigration consequences at that time. See G.L. c. 278, § 29D.

In support of his motion to set aside the plea, the defendant submitted an affidavit stating that he was not provided the necessary immigration warning prior to tendering his plea. At the hearing on his motion, the defendant's attorney also submitted an affidavit by an immigration attorney and indicated that “if [the defendant] files for immigration status that his case likely will trigger a deportation proceeding.” Nothing in the affidavits, or in the defendant's attorney's representations at the hearing, however, suggested that any such proceeding had been initiated. Also the affidavit provided by the immigration attorney stated that the defendant's criminal conviction would subject him to removal proceedings pursuant to “8 U.S.C. § 1227(a)(2)(B) ” (2012). However, that provision relates to criminal offenses involving controlled substances, which is inapplicable to the record before this court. The affidavit does not refer to any express policy by Federal immigration authorities requiring the initiation of deportation or removal proceedings against the defendant due to his plea to the offense in this case. The judge nonetheless allowed the defendant's motion stating, “Based upon [the] affidavit [ ] of [the immigration attorney]—[defendant] faces certain detainment and prosecution by INS officials.”

Discussion. “We review an order granting a new trial motion to determine if the judge committed ‘a significant error of law or other abuse of discretion.’ “ Commonwealth v. Scott, 467 Mass. 336, 344 (2014), quoting from Commonwealth v. Sherman, 451 Mass. 332, 334 (2008). The Commonwealth acknowledges that because no record exists indicating that the defendant received the immigration warnings required by G.L. c. 278, § 29D, the presumption is that no such warnings were given. See Commonwealth v. Grannum, 457 Mass. 128, 132–134 (2010). However, entitlement to relief under G.L. c. 278, § 29D, requires that the defendant prove 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.” Grannum, supra at 134, quoting from G.L. c. 278, § 29D. “Mere eligibility for deportation is not a sufficient basis for relief under G.L. c. 278, § 29D. Nor is it sufficient to show...