Commonwealth v. Hart

975 N.E.2d 447, 82 Mass. App. Ct. 448, 2012 WL 4095274, 2012 Mass. App. LEXIS 250

Opinions

Meade, J.

In 2009, the defendant pleaded guilty to a complaint charging him with disorderly conduct in violation of G. L. c. 272, § 53, and resisting arrest in violation of G. L. c. 268, § 32B. The following year, the defendant moved for a new trial seeking to vacate his guilty pleas. The same judge who had accepted the defendant’s guilty pleas denied the motion. On appeal, the defendant claims that it was an abuse of the judge’s discretion to deny the motion because there did not exist a sufficient factual basis from which the judge could have concluded that the guilty plea to the resisting arrest charge was intelligent.² We affirm.

1. Background. As revealed in the prosecutor’s recitation of the evidence at the plea hearing, which was supplemented by the police report offered by the defendant at the hearing on the motion for new trial,³ the following emerges. The police were dispatched to a possible domestic dispute that had occurred at the defendant’s residence. While the police conducted their investigation, the defendant arrived at the scene and began yelling and screaming, “What the fuck is going on,” and “This is my fucking house.” The police officers asked the defendant to calm down and they brought him outside, where a crowd of neighbors had gathered. The officers then returned inside to resume their investigation. The defendant made numerous attempts to gain access to the home, which interfered with that investigation, and he was told to wait outside.

When the defendant gained access a final time, the officers escorted him outside, called for backup, and told the defendant that if he did not cease his actions, he would be arrested. The defendant then began yelling, “Fuck that bullshit, you better not touch me motherfuckers, I don’t like the fucking police.” The defendant did not calm down and continued to disturb the area, and when the officers “went to place him under arrest. . . , he resisted their arrest.” In an earlier portion of the prosecutor’s recitation, he stated that when the officers asked the defendant to calm down, the defendant “continued to mouth off to the police and then he resisted a little bit when they went to arrest him.”

2. Discussion. “A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.” United States v. Broce, 488 U.S. 563, 569 (1989). “Given the solemnity of the event and its consequences, a variety of procedural protections govern the guilty plea process.” Commonwealth v. Hunt, 73 Mass. App. Ct. 616, 619 (2009). There are two constitutional requirements that are necessary to assure a counselled plea is valid: the decision to plead guilty must be both voluntary and intelligent. Ibid., citing Tollett v. Henderson, 411 U.S. 258, 267 (1972), and Bousley v. United States, 523 U.S. 614, 618 (1998). The defendant claims that his motion for new trial should have been allowed on the ground that his plea was not intelligent because it was not supported with a sufficient factual basis.⁴ We disagree.

The basic permissible record indicators of an intelligent admission of guilt are “(1) an explanation by the judge of the elements of the crime; or (2) a representation that counsel has explained to the defendant the elements he admits by his plea; or (3) defendant’s statements admitting facts constituting the unexplained elements.” Commonwealth v. Sherman, 451 Mass. 332, 335 (2008), quoting from Commonwealth v. Colantoni, 396 Mass. 672, 679 (1986). See Henderson v. Morgan, 426 U.S. 637, 646 (1976); Smith, Criminal Practice and Procedure § 23.65 (3d ed. 2007).

a. Counsel explained the elements. If there was an insufficient factual basis in the prosecutor’s recitation of the facts that purported to constitute the crime of resisting arrest, the analysis does not stop there. What the defendant and the dissent fail to consider is that a sufficient recitation of the facts admitted by the defendant is but one of three independent methods of demonstrating that a plea is intelligent. See Commonwealth v. Sherman, supra. See also Commonwealth v. Furr, 454 Mass. 101, 107 (2009) (intelligence of guilty plea may be established by any one of three methods).⁵

In the course of the judge’s colloquy with the defendant, the judge asked the defendant if he had discussed the charges with his attorney, and the defendant agreed that he had. The judge then confirmed with the defendant’s attorney that he had in fact discussed the nature and elements of the offenses,⁶ what the Commonwealth was obliged to prove, and any defenses that were available to the defendant. When asked, the defendant stated that he was satisfied with his attorney’s advice, and that his attorney had acted in the defendant’s best interest. Finally, as the plea judge specifically acknowledged at the hearing on the motion for new trial, the defendant signed a waiver of rights form, known as the “green sheet,” which, among other things, confirms the representation that he was aware of the elements of the crimes. See Commonwealth v. Furr, supra at 109 (“[T]he defendant’s signed waiver may properly be considered as part of the plea record to support a finding that the plea was made intelligently”). These representations and acknowledgments justified the judge’s denial of the motion for new trial.

In support of its conclusion that reversal of a conviction stemming from a guilty plea is required when the recited facts do not support the elements of the crime, the dissent relies on Commonwealth v. DelVerde, 398 Mass. 288, 296-297 (1986), but that reliance is misplaced. DelVerde did not reshuffle the due process deck relative to guilty plea requirements. Rather, what the court held in that case was that the doctrine of substituted judgment would not be extended to permit a guardian to accept a plea bargain on behalf of an incompetent defendant. Id. at 296-298. The court reasoned that the procedure was not available because no matter what the factual basis was for establishing the defendant’s guilt, “his mental responsibility for those acts [was] in serious doubt.” Id. at 298. The court did not hold that the intelligence of a defendant’s guilty plea could only be measured by the prosecutor’s recitation of the factual basis for the crime admitted to by the defendant. In fact, when discussing the need for a factual basis for a guilty plea, the court twice cited Henderson v. Morgan, 426 U.S. at 645-646, which sets out the three methods of establishing the intelligence of a plea. See Commonwealth v. DelVerde, supra at 293, 297.

b. Sufficient factual basis. Although we need go no further, we note our disagreement with the defendant’s claim, accepted by the dissent, regarding the sufficiency of the factual basis that supported the guilty plea. The defendant claims that no facts existed to support the crime of resisting arrest. Similarly, the dissent concludes that there was no evidence that the defendant “mouthed off” or was “disturbing the area” after the arrest whs effectuated or that the defendant’s conduct rose to the level of using or threatening to use physical force or violence against the police. But both claims take too narrow a view of the facts and the law. As a starting point, a reasonable person, once warned to stop his interference with an investigation or face arrest, who then continues to interfere and make profanity-laden threats of his dislike of the police and directing them not to touch him in no uncertain terms, would have known he was being arrested. See Commonwealth v. Grandison, 433 Mass. 135, 145-146 (2001) (occurrence of arrest measured objectively).

The dissent views too narrowly when an arrest is effectuated and thus excludes from consideration the defendant’s words and actions occurring after the point in time in which the dissent deems that arrest to have been effectuated. As we have held, “[f]or purposes of G. L. c. 268, § 32B, the act of preventing, or attempting to prevent, the effecting of an arrest does not invite a snapshot of a moment in time that is deemed to be ‘the arrest’ after which the defendant’s behavior becomes wholly irrelevant. Rather, effecting an arrest is a process that begins when the [three arrest] criteria are present and ends when the person is fully detained by his submission to official force or placed in a secure location from which he can neither escape nor harm the police officer or others nearby.” (Footnote omitted). Commonwealth v. Knight, 75 Mass. App. Ct. 735, 738-739 (2009). Indeed, an arrest is not necessarily complete when a suspect is handcuffed. Id. at 739. See Commonwealth v. Katykhin, 59 Mass. App. Ct. 261, 262-263 (2003).

Here, the defendant’s abusive and belligerent behavior, coupled with his interference with the investigation, which was twice described as “resisting,” was sufficient to constitute resisting arrest under either method provided by the statute. In addition, as we stated in Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 357 (2010), the crime of resisting arrest is self-explanatory. The dissent endeavors to reject this notion with an explanation based on Tavernier’s conduct in that case, instead of demonstrating why this is not a commonly understood phrase, which we believe it to be. While “resisting arrest” has a legal connotation, to “resist” carries as much, if not more, of a commonly understood meaning as does “rape.” See Commonwealth v. Sherman, 451 Mass. at 336-338 (admission he “forcibly raped” victim sufficient to satisfy missing element — sexual intercourse — based on common meaning of the term). Indeed, Webster’s Third New International Dictionary 1932 (2002), defines “resist” as to “withstand the force or effect of: to be able to repel or ward off”; “to exert oneself to counteract or defeat: strive against: oppose.” Indeed, “resisting arrest” appears as an example of the word’s use. Ibid. See Commonwealth v. Wiswall, 43 Mass. App. Ct. 722, 723 (1997) (phrase “assault with intent to kill” in guilty plea self-explanatory on element of intent); Commonwealth v. DeCologero, 49 Mass. App. Ct. 93, 97 (2000) (judge’s use of term “marketing,” along with statement as to amount Commonwealth would be required to prove, made cocaine trafficking charge self-explanatory).

The defendant received, as due process required, “real notice of the true nature of the charge against him.” Henderson v. Morgan, 426 U.S. at 645, quoting from Smith v. O’Grady, 312 U.S. 329, 334 (1941). The denial of the motion for new trial was not “manifestly unjust.” Commonwealth v. Grant, 426 (1998), quoting from Commonwealth v. Moore, 408 Mass. 117, 125 (1990). The dissent’s conclusion to the contrary fails to give the motion judge, who was also the plea judge, the “special deference” he deserved. Commonwealth v. Grace, 397 Mass. 303, 307 (1986). The record reveals not only a valid guilty plea but the defendant’s desire to accept the bargain so that he could serve his sentence and return to a job that was waiting for him. The record also reveals that the defendant’s motivation for moving to withdraw his guilty plea was to avoid his State conviction from being used as a predicate offense to enhance his sentence in a Federal proceeding. The motion for new trial was properly denied. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 640 (2007) (one does not plead guilty with his “fingers crossed”).

Order denying motion for new trial affirmed.

Order denying motion for reconsideration affirmed.

Footnotes

2

The defendant does not challenge his disorderly conduct conviction.

3

The defendant supplemented the record with the police report, from which the prosecutor read during the guilty plea colloquy. See Commonwealth v. Nolan, 19 Mass. App. Ct. 491, 492 (1985).

4

The defendant does not claim his plea was involuntary. Nor does he alleged that he was unaware of the intratrial rights he was forgoing by pleading guilty, or that his plea was made without a “sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970). See Boykin v. Alabama, 395 U.S. 238, 243 (1969).

5

In support of its conclusion that reversal of a conviction based on a guilty plea is required when the recited facts do not support the elements of the crime, the dissent cites to the Reporters’ Notes to Rule 12(c)(5)(A), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1438 (LexisNexis 2011-2012), which state, “The ‘factual basis’ standard can be met by having the prosecutor state for the record the evidence that the Commonwealth would have presented had the case gone to trial” (emphasis supplied). As the above emphasis demonstrates, the Reporters’ Notes indicate neither a mandatory nor exclusive method of establishing the crime that defendant is admitting he committed. Indeed, the Reporters’ Notes to Mass.R.Crim.P. 12(c)(5), id. at 1437, specifically refer to the trilogy of methods referred to above as the “three ways that the record of a plea or admission can serve as satisfactory evidence that the defendant had the requisite knowledge of the elements of the crime charged.”

6

At the hearing on the motion for new trial, the judge (who also accepted the defendant’s plea) noted that the transcript of the plea colloquy included some portions that were noted as “inaudible.” Based on his practice of what he asks “every time,” the judge specifically added that he asks whether defendants have been advised of the elements of the offense. The defendant does not challenge this.