September 06, 2013
- Steven Topazio wrote this May 5, 2014 at 3:56 am
The client, a 45 year old software professional, was arrested for assault with a dangerous weapon on his wife who immediately obtained a restraining order against him, hired Boston Domestic Violence Attorney Steven J. Topazio to defend him. Attorney Topazio met with his client and prepared the case for trial. Attorney Topazio learned that his client’s wife accused him of throwing glass objects at her and then smashing them on the floor of their apartment, was adamant about testifying against her husband. The client, who is also a green card resident, if convicted, will suffer immigration consequences and become deportable if found guilty of this offense. Assault with a Dangerous Weapon is a felony charge where the client could receive up to five years in State Prison. Evaluating the strength of the Commonwealth’s case, Attorney Topazio conferenced the case with the court and convinced the court and prosecutor to reduce the charges to simple assault, a misdemeanor, where the client still would face up to 2 ½ years in a house of correction if convicted. The court indicated that it would continue the case without a finding upon a change of plea. In almost all cases, once a defendant in adult criminal court enters a plea of guilty, a conviction has occurred for immigration purposes. This is true even if under state law there is not a conviction such as a continuance without a finding. That is because the immigration statute contains its own standard for when a conviction has occurred, which it will apply to evaluate state dispositions regardless of how state law characterizes them. The statute provides that a conviction occurs:
• Where there is “a formal judgment of guilt of the alien entered by a court” or,
• “if adjudication of guilt has been withheld, where … a judge or jury has found the alien guilty, or the alien has entered a plea of guilty or nolo contendere, or has admitted sufficient facts to warrant a finding of guilt, and … the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
Attorney Topazio continued his case to evaluate the immigration consequences to his client upon an admission to a reduced charge of assault.