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Commonwealth v. Quispe3/16/2001
ient evidence presented to grand jury), a judge has no discretion to dismiss a charge under ? 24 (1) (a) (1), except in accordance with the dispositional options provided by the governing statute.
Contrary to the defendant's contention, the pretrial dismissal process articulated in Commonwealth v. Brandano, 359 Mass. 332, 337 (1971), is not available to the judge as an alternative to the procedures provided by the operating while under the influence statute. The statute here provided the only means for dismissing an operating while under the influence charge.
Although the Brandano procedure cannot apply to a charge of operating while under the influence, we believe the judge's stated reasons for dismissal merit further discussion. The Brandano case provides that a valid complaint or indictment cannot be dismissed without the prosecutor's consent unless, among other requirements, the "interests of public justice" mandate a dismissal. Commonwealth v. Brandano, supra at 337. Here, in purporting to hold a Brandano hearing, the judge concluded that the potential immigration consequences to the defendant of an admission to sufficient facts justified a dismissal. Taking immigration consequences into consideration was improper. The possibility that the defendant would be subject to action by the INS is a collateral consequence and cannot be the basis for the judge's decision as to the disposition of this or any future case. See United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000), quoting Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir. 1976) (immigration effects are collateral because deportation is "not the sentence of the court which accept the plea but of another agency over which the trial judge has no control and for which he has no responsibility"); Commonwealth v. Medeiros, 48 Mass. App. Ct. 374, 375 (1999) ("judge had no obligation to anticipate changes in the operation of Federal immigration law"); Commonwealth v. Hason, 27 Mass. App. Ct. 840, 843 (1989) (immigration ramifications of conviction are collateral and contingent consequences).
In addition, the judge's concern about immigration effects does not justify a dismissal in the "interests of public justice." His personal views regarding the wisdom or propriety of a given law are irrelevant and undermine the principle of separation of powers. See McHerron v. Jiminy Peak, Inc., 422 Mass. 678, 681 (1996) (courts may not substitute their judgment for that of Legislature); Commonwealth v. Leno, 415 Mass. 835, 841 (1993) (deference to Legislature is recognition of separation of powers); District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 694 (1980) (Quirico, J., dissenting), quoting Commonwealth v. Leis, 355 Mass. 189, 201 (1969) (Kirk, J., concurring) ("Judicial inquiry does not extend to the expediency, wisdom or necessity of the legislative judgment for that is a function that rests entirely with the lawmaking department").
The Boston Municipal Court judge's order dismissing the charges against the defendant is vacated, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
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