Appeal from the Superior Court of the District of Columbia (F-1472-89) (Hon. James E. Boasberg, Trial Judge).
The opinion of the court was delivered by: King, Senior Judge
Before WASHINGTON, Chief Judge, and REID, Associate Judge, and KING, Senior Judge.
Servilio Valdez pleaded guilty to two burglary related charges on May 1, 1989. Almost fifteen years later, he moved to withdraw his guilty plea claiming that he had not been advised of the immigration consequences of pleading guilty, as required by D.C. Code § 16-713 (2001) at the time of his plea. The United States Attorney was not asked to submit a response.*fn1 The Superior Court denied the motion after Valdez failed to substantiate his claim that the warnings were not given. Valdez challenges this ruling, contending that because the transcripts of the plea proceedings have been destroyed, there is no official record that the warnings were given; therefore, the plain language of D.C. Code § 16-713 requires the withdrawal of his guilty plea. We reverse and remand for further proceedings.
In May 1989, Valdez was charged with first-degree burglary and first-degree theft for entering a residence and stealing approximately $1000 of electronic equipment the previous December. He waived his right to trial that same month,*fn2 and entered pleas of guilty to second-degree burglary and second-degree theft. The Superior Court sentenced him to a term of five to fifteen years on the burglary charge, but suspended the sentence; he was sentenced to time served on the theft charge. He apparently completed his term of probation successfully in November 1993.
On March 24, 2004, Valdez, through new counsel, filed a motion to withdraw his guilty plea, arguing that he had not received the required statutory warnings and that the unavailability of transcripts of the plea proceeding entitled him to withdraw his plea. He further asserted that, at the time the motion was filed, he was facing deportation proceedings, "due in part to his conviction in [this] case." A trial judge issued an order allowing Valdez 45 days in which to submit additional support, such as an affidavit from his prior counsel, to substantiate his claim that he had not received the statutory warnings. When Valdez failed to do so, Judge Boasberg denied his motion.
Pursuant to the routine practice of Superior Court to destroy records more than ten years old, including the transcript of the plea proceedings, Valdez's file was destroyed before he filed his motion in the trial court. Valdez makes no claim that the records were destroyed improperly, however, he asserts that the lack of an official record of the plea proceedings automatically triggers the statutory presumption. The applicable statute, D.C. Code § 16-713 (a), which was enacted in March 1983 -- more than six years before Valdez entered his guilty plea -- provides:
Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime, the court shall administer the following advisement on the record to the defendant: "If you are not a citizen of the United States, you are advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."
The statute further provides that
If the court fails to advise the defendant as required by subsection (a) and the defendant shows that conviction of the offense to which the defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a record that the court provided the advisement required by subsection (a), the defendant shall be presumed not to have received the required advisement.
D.C. Code § 16-713 (b). We are required to give effect to a statute's plain meaning if the words are clear and unambiguous. See Office of People's Counsel v. Public Serv. Comm'n, 477 A.2d 1079, 1083 (D.C. 1984). "The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used." Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983). Furthermore, "in examining the statutory language, it is axiomatic that 'the words of the statute should be construed according to their ordinary sense and with the meaning commonly attributed to them.'" Id. (quoting Davis v. United States, 397 A.2d 951, 956 (D.C. 1979)).
Subsection (b) makes clear that the court may withdraw a guilty plea, only after a defendant sets forth in his withdrawal motion that (1) the court failed to give the required warnings, and (2) "conviction of the offense to which the defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from the United States, or denial of naturalization." In short, the plain language of the § 16-713 (b) permits the withdrawal of a plea only after a defendant states that the trial court failed to give the required warnings and, that because of this failure, he or she has experienced one of the enumerated adverse immigration consequences. Thus, we reject Valdez's claim ...