Commonwealth v. Emmanuel Evariste.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-809

COMMONWEALTH

vs.

EMMANUEL EVARISTE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is an appeal from an order denying the defendant's

second motion to withdraw his guilty pleas in four separate

cases involving possession with intent to distribute a class B

drug and distributing a class B drug, all in violation of G. L.

c. 94C, § 32A (a). A judge of the Boston Municipal Court denied

his motion. On appeal, the defendant argues that his guilty

pleas were not made knowingly, intelligently, and voluntarily

because the plea judge did not give the defendant time to

confirm his understanding of the immigration warning read to him

pursuant to G. L. c. 278, § 29D. We affirm.

Background. In August 2017, the defendant entered guilty

pleas in two separate criminal cases. With respect to each
case, he pleaded guilty to one count of distribution of, and one

count of possession with intent to distribute, a class B

substance. The dockets in both cases reflect that the defendant

was read the immigration warning required by G. L. c. 278,

§ 29D. The defendant received four concurrent, suspended

sentences of two years in the house of correction.

In September 2018, with respect to two additional criminal

cases, the defendant pleaded guilty to two charges of possession

with intent to distribute a class B substance. The dockets in

the 2018 cases similarly reflect that the defendant was read the

immigration warning required by § 29D. The plea judge sentenced

the defendant to concurrent two-year house of correction terms,

with six months to serve and the balance suspended.

In January 2025, the defendant filed a motion to withdraw

his guilty pleas and for a new trial, arguing that § 29D was not

satisfied because the plea judge in September 2018 did not

confirm the defendant's understanding of the immigration warning

issued during the plea colloquy in September 2018.1 Following a

1 This was the defendant's second motion to withdraw his
guilty pleas. In June 2019, the defendant moved to withdraw his
guilty pleas in all four of his cases, arguing that he received
ineffective assistance of counsel. The defendant's motion was
denied, and a panel of this court subsequently affirmed the
denial of that motion. See Commonwealth v. Evariste, 99 Mass.
App. Ct. 1108 (2021).

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hearing, the plea judge denied the defendant's motion on May 27,

2025.

Discussion. We treat a motion to withdraw a guilty plea as

a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b),

as appearing in 435 Mass. 1501 (2001). See Commonwealth v.

DeJesus, 468 Mass. 174, 178 (2014). Because the defendant did

not raise his G. L. c. 278, § 29D, claim in his first motion to

withdraw his guilty plea, his claim is waived. See Mass. R.

Crim. P. 30 (c) (2). Nonetheless, we review the claim to

determine whether there was error, and if so, whether such error

created a substantial risk of a miscarriage of justice. See

Commonwealth v. Barros, 494 Mass. 100, 113 (2024) (where

defendant fails to raise argument in first motion to withdraw,

he "bears the burden of establishing a substantial risk of a

miscarriage of justice in order to obtain relief").

The defendant submitted an audio file of the September 2018

plea hearing which contained a portion of the plea colloquy,

which we have listened to and considered. In that portion, the

plea judge (1) asked the defendant if he had enough time to

discuss the guilty pleas with his attorney and if he was

satisfied with his attorney's advice, (2) advised the defendant

of the consequences of violating probation, (3) asked the

defendant if he was threatened to plead guilty, (4) recited the

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immigration warning, and (5) asked the Commonwealth for the

facts of the case.2

Specifically as to the immigration warning, the plea judge

warned the defendant as follows: "Sir, I'm required to tell you

that if you are not a citizen of the United States, my

acceptance of your guilty plea in each of these two matters will

have the consequence of deportation, exclusion from admission,

or denial of naturalization."3 After issuing the warning to the

defendant, without pause the plea judge asked the Commonwealth

to present the facts of the case.

The defendant argues that the plea judge was required to

confirm the defendant's understanding of the immigration

2 For purposes of this decision, where the defendant has
provided only a portion of the plea colloquy in September 2018,
we assume that nothing more than what was stated in the audio
available to us was stated to the defendant regarding the
immigration consequences of his plea. In addition, although the
defendant moved to withdraw his guilty pleas in all four cases,
he has not provided the plea colloquy from his two guilty pleas
in August 2017. For the sake of argument, we assume that the
immigration warning at the August 2017 plea colloquy was
materially the same as the September 2018 plea colloquy.

3 The judge's warning hewed to G. L. c. 278, § 29D, which
requires that, before accepting a plea, the judge must orally
inform the defendant as follows:

"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."

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warning. The Supreme Judicial Court has rejected the

defendant's argument. The mandate of G. L. c. 278, § 29D, is

"readily satisfied by the judge reading out loud the single

sentence that the Legislature has provided in quotation marks."

Commonwealth v. Hilaire, 437 Mass. 809, 819 (2002). "Nothing in

[§ 29D] requires that the judge confirm the defendant's

understanding of the potential immigration consequences . . . ."

Id. See Commonwealth v. Dor, 99 Mass. App. Ct. 903, 904 (2020)

("When a defendant is warned that his conviction of the offenses

with which he is charged could lead to adverse immigration

consequences, and then enters guilty pleas to those charges, the

statutory purpose [of § 29D] is met"). The statute "concerns

only what the judge must say to the defendant and not [t]he

defendant's subjective understanding of immigration law in

effect at the time of the guilty plea" (quotation and citation

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omitted). Commonwealth v. Petit-Homme, 482 Mass. 775, 783

(2019). We discern no error.

Order entered May 27, 2025,
denying motion to withdraw
guilty pleas and for new
trial affirmed.

By the Court (Vuono, Henry &
Singh, JJ.4),

Clerk

Entered: May 7, 2026.

4 The panelists are listed in order of seniority.

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