COMMONWEALTH v. FRANCISCO MALDONADO (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Francisco Maldonado, claims that a Superior Court judge failed to provide immigration warnings at his plea hearing, see G. L. c. 278, § 29D, and thus his motion to vacate his guilty pleas should have been allowed. We affirm.

Background. On August 11, 1995, the defendant pleaded guilty to nine drug-related counts in the Superior Court before a now-retired Superior Court judge (plea judge).² He was sentenced to no less than five years and no more than five years and one day in State prison.

On October 19, 2023, the defendant moved pursuant to G. L. c. 278, § 29D, to vacate his guilty pleas and enter pleas of not guilty (motion to vacate), contending that he had not received immigration warnings. As averred in the defendant's affidavit filed in support of the motion to vacate, the defendant claimed that he would not have entered his pleas if he had known of the possible consequences identified in the immigration warning required by G. L. c. 278, § 29D. The Commonwealth filed an opposition to the motion to vacate and attached thereto an affidavit of the plea judge. That judge averred, inter alia, that her practice was to use a form plea colloquy that included a question about whether the defendant understood the potential immigration consequences of his or her plea; that the form detailed three potential immigration consequences of a guilty plea, namely deportation, exclusion from the United States, and denial of naturalization; that she asked the question in every plea proceedings; and that it was her custom and practice to provide the “immigration warnings” as required by statute in every plea proceeding. On September 3, 2024, the motion was argued before a different Superior Court judge (motion judge), who denied the motion in a written decision. The defendant now appeals therefrom.

Discussion. The defendant argues that G. L. c. 221, § 29,³ imposes a duty to ensure that records are “made up seasonably and kept in good order,” that the Superior Court docket in the present case lacked any notation reflecting that immigration warnings had been provided at the plea hearing, and thus the plea judge's affidavit was insufficient to overcome the presumption that no immigration warnings had been provided. See Commonwealth v. Ciampa, 51 Mass. App. Ct. 459, 462 (2001). The argument is unavailing.

The disposition of motions to vacate and for a new trial is left to the sound discretion of the motion judge and will not be overturned unless there has been an abuse of discretion or other significant error of law. See Ciampa, 51 Mass. App. Ct. at 461. “A motion to vacate the judgment pursuant to G. L. c. 278, § 29D, is different in kind” and must be allowed if the warnings were not given and “on a showing that the criminal conviction at issue may have any of the enumerated consequences to the defendant's immigration status; the judge has no discretion in that regard.” Commonwealth v. Mahadeo, 397 Mass. 314, 318 n.5 (1986).

At the time of the defendant's guilty pleas, the plain language of § 29D required that a defendant be advised that a guilty plea may result in “deportation, exclusion from admission to the United States, or denial of naturalization.” G. L. c. 278, § 29D, inserted by St. 1978, c. 383.⁴ The statute further provided that “[a]bsent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.” Id. Thus, “[t]he burden is on the Commonwealth to provide a record of the proceedings affirmatively demonstrating that the defendant was advised that his plea might impair his immigration status” (quotation and citation omitted). Ciampa, 51 Mass. App. Ct. at 462. “Where there is no record that the court provided the required advisement, the presumption arises that no warning was given.” Id. However, “the plea judge's statement that it was [their] usual practice to administer the warnings to all defendants, constitutes a ‘record’ within the meaning of G. L. c. 267, § 29D, [such] that the presumption no longer applies.” Id.⁵

Here, it is uncontested that the docket does not reflect that immigration warnings were given. That notwithstanding, the record reflects, and the defendant concedes, that the plea judge's affidavit complies with the requirements delineated in Ciampa, 51 Mass. App. Ct. at 463-464. Indeed, the plea judge specified that (1) “it was [her] custom and practice to provide the so-called ‘immigration warnings’ as required by statute”; (2) that she provided these warnings “from the time of [her] induction”; (3) she listed the “three potential immigration consequences of a guilty plea”; and (4) she provided the warnings “in every plea proceeding.” On that basis alone, we discern no error of law or abuse of discretion by the motion judge.

Nevertheless, the defendant maintains that our holding in Ciampa is inconsistent with G. L. c. 221, § 29. We disagree. First, the defendant cites no precedent, and we have found none, supporting the application of G. L. c. 221, § 29, to a motion to vacate a plea. Second, the defendant's reading of G. L. c. 221, § 29, is not supported by the plain language of that statute. Third, the statute's requirement that judges inspect the clerk's “doings ․ from time to time,” undermines the defendant's contention that a plea judge must inspect the docket in every case to ensure accuracy. Indeed, chapter 221, § 29, neither imposes case-specific recordkeeping obligations on judges at plea hearings, nor conditions the validity of a reconstructed record on a judge's compliance with the statute. Finally, the statute's enforcement mechanism emphasizes its limited scope, because “if the records are left incomplete for more than six months,” only the bond of the clerk is affected. G. L. c. 221, § 29. Contrary to the defendant's contention, the Supreme Judicial Court has made clear that a judge's averment of his “customary practice in taking guilty pleas” is a legitimate manner of reconstructing the record of a plea hearing (citation omitted). Commonwealth v. Rzepphiewski, 431 Mass. 48, 53-54 (2000). Accordingly, we agree with the motion judge that the defendant's reliance on G. L. c. 221, § 29, is misplaced. We further agree that in light of the plea judge's affidavit, the judge acted well within his discretion in denying the defendant's motion to vacate. Ciampa, 51 Mass. App. Ct. at 462.⁶

Order denying motion to vacate guilty pleas affirmed.

FOOTNOTES

2.   The defendant was charged with crimes related to distribution and trafficking of cocaine on eight different occasions.

3.   General Laws c. 221, § 29, provides that “[t]he justices of the several courts shall inspect the doings of the clerks from time to time, and shall see that the records are made up seasonably and kept in good order; and if the records are left incomplete for more than six consecutive months, such neglect unless caused by illness or casualty shall be adjudged a forfeiture of the bond of the clerk.”

4.   All references to § 29D are to the 1978 version unless otherwise noted.

5.   The judge's statement must include the following information: “(a) that it was the customary practice of the plea judge to administer the warnings; (b) when the customary practice was instituted and whether it was in effect at the time of the hearing; (c) that the advisement consisted of all three warnings, given conformably with the language set forth in G. L. c. 278, § 29D; and (d) that the advisement was given to all defendants.” Ciampa, 51 Mass. App. Ct. at 463-464.

6.   To the extent we do not discuss other arguments made by the parties, they have not been overlooked. “We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).