Whether police violation of the Vienna Convention justifies a motion to withdraw a guilty plea.

The defendant, a citizen of the Dominican Republic, was arrested and charged with crimes three times in 2003. At no time was he given notice of his right to communicate with his consulate, as required by the Vienna Convention. He pled to all three crimes at a single hearing, obtaining a relatively favorable sentence of eleven months in jail. In 2008 the defendant was detained for deportation as a result of his convictions and moved to withdraw his guilty pleas, alleging that he had not been told of the potential immigration consequences. The plea judge denied the motion without evidentiary hearing. The defendant appealed, and the SJC transferred the case sua sponte from the Appeals Court.

Article 36(1)(b) of the Vienna Convention, a ratified treaty, provides that “if [the defendant] so requests, [the arresting authorities] shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested … The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.” The defendant argues that this language creates an enforceable right which has been routinely ignored by police, and that he was materially prejudiced because his assigned counsel failed to inform him of the immigration consequences of his plea. The Commonwealth argues that the Court should refuse to grant withdrawal of guilty plea as a remedy for the violation of any individual right in Article 36, just as it refused to grant suppression of evidence in Commonwealth v. Diemer, 57 Mass. App. Ct. 677 (2003).

The easiest path for the Court to take would be to deny any remedy under the Vienna Convention. Cases in other jurisdictions have done so, and the same logic that led the Appeals Court to deny suppression would also justify the SJC in denying withdrawal of plea. It is notable, however, that (according to the defendant) a specific right granted in a ratified treaty has been violated routinely for many years without any meaningful recourse. If it was true that the Attorney General’s efforts to end violations since Diemer have not been effective (a claim the defendant has not shown), it might in theory be within the Court’s supervisory power to reject pleas obtained after violation of the treaty. 

It is not clear how this case will be affected by Padilla v. Kentucky, 130 S. Ct. 1473 (2010), which established that defendants have a right to be advised of the immigration consequences of their pleas. The defendant avers that his eleven month sentence was negotiated in an (unsuccessful) attempt to avoid immigration consequences, strongly suggesting that he received inadequate advice. Padilla was decided approximately one month before the Court transferred this case from the Appeals Court.