COMMONWEALTH vs. LYDIA RODRIQUEZ.

DUFFLY, J. The defendant's motion to withdraw her guilty plea was allowed by a Superior Court judge who had also presided over the initial plea tender more than eleven years before. At the earlier hearing the judge had advised the defendant of the consequence of deportation but failed to warn that her guilty plea additionally "may have the consequences of . . . exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States," as mandated by G. L. c. 278, § 29D, inserted by St. 1978, c. 383. In this appeal the Commonwealth argues that the defendant, who faces deportation, is not entitled to withdraw her guilty plea because her exclusion from reentry to the United States is speculative.

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We address the question left open by Commonwealth v. Berthold, 441 Mass. 183 , 186 n.4 (2004), "whether the automatic denial of readmission for certain periods of time following deportation . . . as contrasted with the denial of readmission on the basis of one's criminal record alone . . . is a consequence (separate from deportation) of which § 29D was intended to warn." We agree with the motion judge that because the defendant now also faces immigration consequences about which she was not warned (denial of readmission), the plain language of the statute requires that the defendant be permitted to withdraw her guilty plea. More specifically, we conclude that the defendant's conviction -- a drug-related "aggravated felony" for purposes of immigration law -- results in the automatic, and now permanent, denial of readmission to the United States, see 8 U.S.C. § 1182(a)(9)(A) (2000), [Note 1] and that this is an "enumerated consequence" of the defendant's plea about which she was not warned.

Background. In 1993, the defendant pleaded guilty to the crime of possession with intent to distribute cocaine and was sentenced to a suspended term of from seven to ten years and two years' probation, with a number of conditions, including drug treatment, counselling, and various fees. At the plea colloquy, the motion judge advised the defendant: "You need to understand that a finding of guilt on this offense may mean that you will be deported from the United States, that you may lose your permanent residence, your green card, and that you may lose your right to remain in the United States lawfully. Do you understand that?" The defendant replied, "Yes, sir, I understand."

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In 2004, the defendant moved to vacate her plea on grounds that she had not been given sufficient warning of the effect of the plea on her immigration rights as required by G. L. c. 278, § 29D, and that she was now the subject of pending deportation proceedings. In an affidavit accompanying the motion, her counsel stated that the defendant "has been ordered to answer in removal proceedings that could result in her deportation." The affidavit also states that the defendant was not "advised that she will never be allowed to return to the United States as a result of her plea." [Note 2] At the hearing, both the prosecutor and defense counsel represented that the defendant had been the subject of deportation proceedings before an immigration court and had been ordered deported. Defense counsel further argued that Federal law enacted in 1996 [Note 3] created categories of aggravated felonies that now include the offense to which the defendant had pleaded guilty and eliminated discretionary relief that previously had been available to immigration judges. He went on to argue that under this law, the defendant now would be barred from reentry for an extended period and that she seeks reentry to be with her family.

It was not contested that the defendant has three children who are United States citizens. The prosecutor argued that in light of the facts that the defendant has three young children, one of whom has had frequent hospitalizations due to illness, and that there have been no additions to the defendant's criminal record since her guilty plea, she might succeed in her appeal from the deportation order on humanitarian grounds and that it was, in any case, merely speculative that the defendant would be barred from reentry.

The motion judge (who, as we have observed, also heard the plea and provided the colloquy) found that the defendant's conviction of possession of cocaine with intent to distribute

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qualified as an aggravated felony under the immigration laws of this country. [Note 4] He allowed the motion to vacate on the ground that the defendant "is facing an immigration consequence that she was not warned of: denial of naturalization." For reasons not evident in the record, he did not address the defendant's claim that he had failed to warn of the bar to reentry and that the defendant faced this consequence as a result of having been deported. [Note 5]

We conclude that the defendant should have been permitted to withdraw her guilty plea, but on grounds other than that stated by the motion judge. See Commonwealth v. Va Meng Joe, 425 Mass. 99 , 102 (1997); Commonwealth v. Sweezey, 50 Mass. App. Ct. 48 , 51 n.8 (2000).

Discussion. General Laws c. 278, § 29D, requires that, before accepting a guilty or nolo contendere plea, [Note 6] a judge must provide a defendant with an advisement, which is set out in quotation marks in the statute. In 1993, that advisement was 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." [Note 7]

Section 29D, now as then, requires that a defendant be warned

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in the manner specified by the statute. Thus "[t]o comply with the statute, the judge must give the alien warning, preferably by reading the single quoted sentence directly from the statute." Commonwealth v. Hilaire, 437 Mass. 809 , 819 (2002). See 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"). [Note 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 guilty.' (emphasis added)." Commonwealth v. Berthold, 441 Mass. at 184-185, quoting from G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254 (the language of which is in all significant respects identical to that of St. 1978, c. 383, the version applicable here). The Supreme Judicial Court has interpreted this "remedy clause of G. L. c. 278, § 29D, [as being] triggered only when a defendant can additionally demonstrate that he

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'may' become subject to one of the immigration consequences enumerated in the statute. We construe this requirement to mean that a defendant must demonstrate more than a hypothetical risk of such a consequence, but that he actually faces the prospect of its occurring." Id. at 185.

The Commonwealth contends on appeal that the defendant's motion to vacate her guilty plea should have been denied because the defendant was warned about the consequence of deportation, the exact consequence she actually faces. It argues that the statute offers no remedy unless the defendant can show that, in addition, she actually faces one of the consequences about which she was not warned -- exclusion from admission to the United States or denial of naturalization. For this proposition, the Commonwealth relies on Berthold, in which the court said: "A defendant who has been warned under the statute of the very consequences with which he must subsequently contend is not entitled to withdraw his plea, even if he was not warned of other enumerated consequences that have not materialized." Id. at 186.

As is also the case here, the defendant in Berthold faced deportation, a consequence about which he had been warned. In Berthold, however, the defendant failed to raise in his motion to withdraw his guilty plea the "argument that, now deported, he likely will be excluded from admission to the United States, and thus may face an 'immigration consequence' enumerated in § 29D of which he was not advised." Id. at 186 n.4. Because the argument was not raised below, it was deemed waived, thereby leaving unanswered the question "whether the automatic denial of readmission for certain periods of time following deportation, see 8 U.S.C. § 1182(a)(9)(A)(ii) (2000), as contrasted with the denial of readmission on the basis of one's criminal record alone, see 8 U.S.C. § 1182(a)(2) (2000), is a consequence (separate from deportation) of which § 29D was intended to warn." Ibid.

Unlike the defendants in Berthold and Commonwealth v. Agbogun, 58 Mass. App. Ct. 206 (2003), the defendant here based her motion to vacate on the consequence of exclusion from the readmission to the United States, which is the automatic and direct result of the deportation stemming from her conviction.

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This was not a consequence the defendant "may face only in some hypothetical future," Commonwealth v. Agbogun, supra at 208; instead, she "actually faces the prospect of its occurring." Commonwealth v. Berthold, 441 Mass. at 185. See Commonwealth v. Hilaire, 437 Mass. at 813-814 ("With the commencement of deportation proceedings against [the defendant], there is no dispute that the defendant 'may' suffer one of the enumerated immigration consequences . . ."). [Note 9]

The defendant's conviction of possession of cocaine with intent to distribute qualifies as an "aggravated felony" under Federal immigration law and permanently bars her readmission to the United States. See 8 U.S.C. §§ 1101(a)(43)(B), 1182(a)(9)(A) (2000). [Note 10] Cf. Commonwealth v. Casimir, 68 Mass. App. Ct. 257 , 258 n.2 (2007). Under current Federal immigration law, the defendant's conviction of an aggravated felony related to a controlled substance violation subjects her to deportation, 8 U.S.C. § 1227(a)(2) (2000), and to automatic denial of readmission, 8 U.S.C. § 1182(a)(9)(A). Thus, the defendant faces immigration consequences about which she had not been advised: "the automatic denial of readmission for certain periods of time following deportation." Commonwealth v. Berthold, 441 Mass. at 186 n.4, citing 8 U.S.C. § 1182(a)(9)(A)(ii). We conclude that this is "a consequence (separate from deportation) of which § 29D was intended to warn." Ibid. Cf. Van Slytman v. United States, 804 A.2d 1113, 1117 (D.C. 2002) (alien with aggravated felony conviction warned of consequence of deportation but not that, once deported, he would be excluded from reentry for twenty years and could not become citizen for five years after conviction;

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court concluded that this brought him "within the protection of the [immigration warning] statute with respect to the unwarned consequences").

The order allowing the defendant's motion to withdraw her guilty plea is affirmed.

So ordered.