Home > Vacating a Criminal Conviction and Your Rights as a Criminal Defendant in Massachusetts

Vacating a Criminal Conviction and Your Rights as a Criminal Defendant in Massachusetts

Facing criminal charges can be one of the most stressful and overwhelming  experiences a person will ever endure. It can be incredibly intimidating for a person to stand in front of a courtroom and be accused of a criminal act, especially when their freedom, reputation, and future are on the line.. In some cases, a judge will quickly decide whether the individual can remain free from custody while their case makes its way through the criminal justice system. Generally, the person will have only a few short appearances in court before being faced with a decision of whether or not to accept responsibility for the criminal allegations.

For most defendants, court appearances are brief and procedural, and they may feel pressured to make life-altering decisions before having the opportunity to fully explain their side of the story. Accepting responsibility for a charge, whether through a guilty plea or another type of disposition, can sometimes result in immediate relief, such as release from jail, fewer court dates, or the ability to return to work and family obligations.

However, what many people do not realize is that accepting responsibility does not always mean pleading guilty, and even dispositions that avoid a formal conviction—such as a continuance without a finding or similar outcomes—can still carry serious legal and immigration consequences. Individuals often agree to these resolutions simply to move on with their lives, even when they are not truly at fault.

The most severe consequences of a criminal case are often not felt right away. Long after a case is resolved, a criminal record can lead to unexpected and devastating outcomes, including loss of employment, suspension of a driver’s license, denial of a visa or green card, or even removal proceedings and deportation. For non-citizens, a single criminal charge can jeopardize lawful status and permanently affect the ability to remain in or return to the United States.

That is why it is critical for an immigrant to work with an attorney who understands both criminal defense law and immigration law. An experienced immigration and criminal defense lawyer can help protect your rights, evaluate the full impact of any plea or disposition, and fight for an outcome that safeguards not only your freedom—but your future.

Even if your case was closed years ago, it is still important to have it properly evaluated. In Massachusetts the law allows an individual who accepted a resolution of a criminal case with a plea, to have the plea vacated and obtain an opportunity to have a trial, if they were not properly advised of their rights.  This effectively removes the negative consequences of the plea and provides them with a new chance for justice.

Grounds to File a Motion to Vacate a Criminal Conviction in Massachusetts

Fortunately, in some instances, even if a person has pled guilty or been convicted of a crime the court system of Massachusetts provides them  second chance. Rule 30 of the Massachusetts Rules of Criminal Procedure  allows a court to remove (vacate) a conviction if it was obtained unjustly or if the proper procedures were not followed.

Vacating a criminal conviction  will generally require information about how the initial criminal case proceeded, like the old court records, as well as documentation about the evidence that the government presented, as well as evidence and information that demonstrate the prior proceedings were not conducted properly, or new evidence that the person was actually innocent. There are many scenarios in which the court might grant a motion to vacate a conviction, and allow a person to have another opportunity to defend the case.

A Plea Must Be Knowingly, Intelligently, and Voluntarily Made

If a guilty plea was made, the defendant must have made it knowingly, intelligently, and voluntarily (not coerced in any way) for the guilty pleato be valid in Massachusetts and in most jurisdictions.

A criminal defendant’s plea must be made knowingly, which simply means that the defendant knows the charges against them and the elements of the crimes which would be required to be proven in court, in order for them to be found guilty.

The plea must also be intelligently made, meaning that the defendant must understand the circumstances of their case and importantly the consequences of pleading guilty, or admitting to sufficient facts for a finding of guilt. In Massachusetts, this includes an understanding of the consequences of the plea according to the immigration law. c

Lastly, a plea is voluntary if the defendant made the plea of their own free will and was not unlawfully coerced into pleading guilty.

If it can be proven that a plea was not knowingly, intelligently and voluntarily made then it is possible to have the conviction removed / vacated.

Failure of Prior Lawyer / Plea Counsel to Provide Proper Advice about the Immigration Consequences of a Plea May Allow a Conviction to Be Removed.

In Massachusetts, like many jurisdictions, a criminal defense attorney is required to provide proper advice to a criminal defendant about the immigration consequences of a plea or an admission to sufficient facts that results in a “Continuance without a Finding” or a CWOF.

On March 31, 2010, the Supreme Court ruled in the case Padilla v. Kentucky, that changes to U.S. immigration law, particularly in 1996 and 1997, had dramatically raised the stakes of a noncitizen’s criminal conviction, and noncitizens accused of a crime have the right to “the effective assistance of competent counsel,” which includes proper advice about immigration consequences of a plea, under the Constitution. So the failure of a defendant to receive this advice, allows their criminal conviction to be vacated.

In 2011, the Court in Massachusetts issued a decision clarifying that this principle of effective assistance of counsel applies to state criminal convictions, in the case Commonwealth v. Clarke.

Therefore, in Massachusetts, if a person who is not a citizen of the U.S. pled guilty or made an admission to sufficient facts for a CWOF, and their attorney did not explain the immigration consequences of that disposition of their case, then the non-citizen can have their conviction vacated, and they will have another chance to successfully resolve the case.

This can prevent the person from having their immigration status taken away or from being removed / deported from the United States. Failure to Read the complete  “Colloquy” to a Defendant

In Massachusetts, one way that postconviction relief may be obtained, and a criminal conviction vacated, is  if a judge failed to read the complete mandatory “colloquy” before accepting a defendant’s guilty plea. A colloquy is a series of questions the judge will ask the defendant and warnings that the judge will give to confirm that the guilty plea was made knowingly, intelligently, and voluntarily.

Using a colloquy helps the judge ensure that the defendant’s guilty plea is free of coercion; that they understand the crimes they have been charged with; that they are aware of the extent of their guilt; that they understand the potential consequences involved, and that they are competent to make the plea. It also reminds the defendant that they have a right to a trial if they so choose. Failing to make these inquiries can be grounds for postconviction relief.

The law in Massachusetts requires the judge to advise or warn a criminal defendant that an admission to sufficient facts that results in a “Continuance without a Finding” or a guilty plea may result in severe immigration consequences if the defendant is not a U.S. Citizen, as it can result in removal / deportation from the U.S., denial of admission to the U.S. or denial of an application for U.S. Citizenship. [M.G.L. Chapter 278 Section 29D]

If the court records show that the immigration warnings were not given to a defendant who after the plea faces one of those consequences, then the conviction should be vacated, unless the prosecution can prove that the warnings were actually given.

Competency of the Defendant

A defendant must also be mentally competent to enter aguilty plea. A defendant is considered competent to enter a guilty plea if they have the present ability to consult with their attorney and have a rational and factual understanding of the proceedings against them. If a judge fails to ensure that the defendant comprehends what they are pleading to, a request can be made to vacate a criminal conviction.

Effects on Defendant’s Immigration Status

There are many ways in which a criminal conviction can affect a person’s immigration status.  A criminal conviction may result in a person’s deportation or removal from the United States. It may prevent them from obtaining U.S. citizenship and it may render them inadmissible (ineligible for residency or entry to the United States with a Visa).

In Massachusetts, the court is required to provide each defendant with a verbal warning about the potential immigration impact that guilty pleas and admissions can have on the status of an immigrant.  If the court does not provide these warnings and an individual may be subject to one of those consequences then the conviction may be vacated.  In addition to the court warnings, a defendant must be advised by his attorney of all of the potential consequences that a plea or admission of guilt will have on their immigration status. If the criminal defense attorney does not provide this advice and information, then the conviction may be vacated if the defendant can demonstrate there was a reasonable alternative to the guilty plea or admission.

Your Constitutional Rights as a Defendant in a Massachusetts Criminal Case

There are rights that every criminal defendant has and if those rights were not respected the defendant may have this conviction vacated or overturned. In Massachusetts, some important rights include:

• The right to be present at all critical stages of the criminal proceeding
• The right to a trial by jury or by a judge
• The right to present evidence and testimony
• The right to examine and review the evidence that the government has against you prior to the trial
• The right to representation by a qualified attorney that properly represents you
• Right to be advised by the judge of the potential immigration consequences of your conviction before you plea
• And the right that your attorney provides a detailed explanation of the actual immigration consequences of your plea

Post-Conviction Relief Under Rule 30 of the Massachusetts Rules of Criminal Procedure

Rule 30 of the Massachusetts Rules of Criminal Procedure, provides for Post-conviction Relief, as it allows a defendant who has made an admission to sufficient facts, pleaded guilty, or been found guilty to file a motion for a new trial, vacating the conviction.

In Massachusetts in order to vacate a conviction, the post-conviction relief procedures, under Rule 30 require the defendant to:

• Present a motion for a new trial, to the Court that issued the conviction. The motion must be heard by the same Judge that entered the judgement of conviction, and only if that Judge is not accessible, may another Judge rule on that motion.
• The motion must be accompanied by sufficient evidence, in the form of an affidavit (a sworn statement), as well as other records and documentation, if they are available, to demonstrate that the conviction which was entered was unlawful.
• The motion and its supporting evidence must be served on the prosecutor’s office that handled the case for the Commonwealth, whether it was the Office of the Attorney General or one of the District Attorney’s Offices.
• The Court, in its discretion, may schedule an evidentiary hearing at either party’s request, if it is necessary for the Court to reach a decision.
• The Court after reviewing the motion, with or without a hearing, must issue a decision granting or denying the request for a new trial.

What Happens if My Massachusetts Criminal Conviction is Vacated?

If the court vacates the conviction, the defendant will usually be required to defend the charges again, so it is important to consider the likelihood of whether or not the new trial will be successful, before filing the motion to vacate a conviction.

Courts are generally more open to vacating a conviction if it is clear that the defendant will be successful in their defense. Vacating a conviction and successfully defending the case can eliminate virtually all of the problems that the conviction caused or would cause, and it can be vital for non-U.S. citizens to be able to remain in the United States.

If you are facing criminal charges, have been improperly convicted or your rights have been violated, our Boston criminal defense lawyers can defend you and assist with vacating a conviction in Massachusetts. Vacating a conviction and obtaining the proper criminal defense is all the more important if you are an immigrant as certain types of pleas which may look advantageous in terms of less harsh punishments can be worse in terms of immigration consequences. Our experience with immigration matters makes our criminal defense attorneys uniquely qualified to represent immigrants in criminal matters.

Our Massachusetts Criminal Defense Attorneys Can Help

To schedule a consultation with one of our criminal defense lawyers in Massachusetts call us at 617-523-6320 (ext.0) or request your appointment online. It will be our pleasure to help you.