Immigrant Gets Second Bite at Plea Deal Apple Because Judge Didn’t Read Him Enough Deportation Warnings

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A non-citizen immigrant who admitted showing two men a gun and threatening to shoot them has had his quasi-guilty plea thrown out because the trial-court judge gave him one warning that he might be deported because of it but not two.

Court papers say Denver Petit-Homme on August 6, 2016 drove to a barber shop near the intersection of Washington Street and Bowdoin Street in Dorchester, left the vehicle, approached two men, showed them a gun in his waistband, and threatened to shoot them. Then he got back in his vehicle and drove away.

Petit-Homme, whose lawyer says was born in Haiti, came to the United States at age 4, and has permanent resident status, in January 2017 admitted to sufficient facts in the Dorchester division of Boston Municipal Court in two counts of assault with a deadly weapon and two counts of threat to commit a crime.

An admission to sufficient facts in Massachusetts acknowledges that the prosecution has enough evidence to get a conviction if the case went to trial but allows a defendant to avoid a formal guilty finding by the court. By entering the admission before a trial, the defendant often gets a lesser sentence than if the case proceeded.

Before accepting his admission, Judge Lisa Ann Grant warned Petit-Homme that admitting to sufficient facts in the case might lead to his being deported. According to court papers, the judge said:

Sir, I have to advise you, as I have to advise everybody, that if you are not a citizen of the United States and the crime admitted to is one that presumptively mandates removal from the United States and the federal officials decide to seek removal, acceptance by this Court of your admission will make it practically inevitable that this admission will result in deportation, exclusion from admission, or denial of naturalization under the laws of the United States.

The problem, the Massachusetts Supreme Judicial Court said this week, is that the judge was supposed to give the defendant two warnings about his immigration status. The warning she gave stems from a court rule. But another, which she didn’t give, stems from a state statute the Massachusetts Legislature passed in 1978 designed to protect non-citizens.

Massachusetts General Laws Chapter 278, Section 29D states in part:

The court shall not accept a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts from any defendant in any criminal proceeding unless the court advises such defendant of the following: ”If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.” The court shall advise such defendant during every plea colloquy at which the defendant is proffering a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts. The defendant shall not be required at the time of the plea to disclose to the court his legal status in the United States.

The rest of the statute tilts the presumption toward the non-citizen:

If the court fails so to advise the defendant, and he later at any time shows that his plea and conviction may have or has had one of the enumerated consequences, even if the defendant has already been deported from the United States, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty, plea of nolo contendere, or admission of sufficient facts, and enter a plea of not guilty. Absent an official record or a contemporaneously written record kept in the court file that the court provided the advisement as prescribed in this section, including but not limited to a docket sheet that accurately reflects that the warning was given as required by this section, the defendant shall be presumed not to have received advisement. An advisement previously or subsequently provided the defendant during another plea colloquy shall not satisfy the advisement required by this section, nor shall it be used to presume the defendant understood the plea of guilty, or admission to sufficient facts he seeks to vacate would have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization.

Petit-Homme knew his status in the country was in jeopardy before he made the admission to sufficient facts in January 2017, because he falsely told the judge he was born in the United States. (A defense trial lawyer representing him later told the judge that his client was worried about being deported and thought identifying as a U.S. citizen might help him avoid it. The trial lawyer also told the judge at the time that he had informed Petit-Homme of the immigration consequences of the admission, according to court papers.)

The judge continued the barber shop case without a finding for three years with probation, meaning no jail time and no guilty finding as long as the defendant did not commit a crime during that period or otherwise violate probation.

Although assault with a deadly weapon is considered a violent crime, it doesn’t automatically trigger a deportation case from federal Immigration and Customs Enforcement. Since Petit-Homme’s admission didn’t bring jail time, it also didn’t bring heat from ICE.

The case wouldn’t have reached the state’s highest court except for what happened after the plea deal. Petit-Homme violated his probation, which led the judge in June 2017 to sentence him to two years in jail. The sentence drew a written notice from immigration authorities that they planned to take him into custody when his term ended and would attempt to deport him.

That led Petit-Homme in August 2018 to ask the judge to withdraw his original admission to sufficient facts, on the grounds that she hadn’t read him both immigration warnings.

“The Commonwealth countered the defendant’s claims with the fact that he faces no real prejudice from the pleas in this case, as he has ‘six other charges on his record that could all be grounds for deportation:  two counts of resisting arrest, one count of threats, and two counts of violating an abuse prevention order that would count as domestic violence/family violence …’,” wrote the prosecutor, Erin Knight, an assistant district attorney in the Suffolk County District Attorney’s office, in a January 2019 brief to the Massachusetts Supreme Judicial Court.

Petit-Homme’s appeals lawyer also noted his client’s criminal history, arguing that it made the appeal stronger because the immigration consequences of the admission of sufficient facts are grave, since multiple crimes within a certain time period involving what the law defines as “moral turpitude” are grounds for deportation.

“At the time of the defendant’s plea in the instant case, he had already been convicted of assault and battery with a dangerous weapon in 2013. … Like assault with a dangerous weapon, this offense is a crime involving moral turpitude. … The defendant’s plea therefore made him deportable, as it constituted his second conviction for a crime involving moral turpitude,” Petit-Homme’s lawyer, Edward Crane, who has an office in Cambridge, wrote in a November 2018 brief.

The judge eventually declined to allow Petit-Homme to withdraw his admission, without saying why.

In his appeal, Crane argued that the immigration warning set forth in the court rule and the one spelled out in the state statute are not substantially the same because the statute version is more sweeping and in plainer English.

The Massachusetts Supreme Judicial Court agreed, and also said the plain meaning of the state statute cannot be ignored in favor of the warning set forth in the court rule. Judges should read both warnings to defendants, the court said.

“Without the general statutory warning, the [court rule] warning is therefore too technical, legalistic, and complex in its application to be particularly informative. Given the specificity of the legislative mandate that a more general and comprehensible warning be given, we conclude that the defendant is entitled to the legislative remedy. … The warning given to the defendant was presented only in complex, legal terminology. This highly technical warning, given alone, without the general, easily comprehensible words the Legislature prescribed, was therefore not sufficient to satisfy the statutory requirements,” wrote Justice Scott Kafker, who took his seat in August 2017 after being appointed by Governor Charlie Baker.

The opinion also asks an advisory committee to review the immigration warning in the court rule that the trial-court judge used and recommend either changes to it or getting rid of it.

The high court allowed the defendant to withdraw his plea and remanded the case back to the trial court.

Petit-Homme’s lawyer hailed the ruling.

“All I can say right now is that I’m pleased with the result and that I think the Court made the right decision,” Crane said in an email message Wednesday to New Boston Post.

It’s not clear whether prosecutors will pursue the assault-with-a-deadly-weapon charges against Petit-Homme. The case is now about three years old.

A spokesman for Rachael Rollins, the Suffolk County district attorney, asked by New Boston Post if the office will continue with the case, said it’s too soon to say.

“We’re currently in the process of reviewing the decision and next steps,” said Renee Nadeau Algarin, a deputy press secretary for Rollins, in an email message Wednesday.

The case is Commonwealth vs. Denver Petit-Homme. The decision was published Wednesday, August 7.