Commonwealth v. Kenneth D. Dwyer.

• Court: Massachusetts Appeals Court
• Decided: January 10, 2025
• Docket: 23-P-1334
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1334

COMMONWEALTH

vs.

KENNETH D. DWYER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Kenneth D. Dwyer, appeals from the denial of

his motion to withdraw his guilty plea. In 2016, a criminal

complaint issued charging the defendant with operating under the

influence of liquor (OUI), second offense, G. L. c. 90,

§ 24 (1) (a) (1); a marked lanes violation, G. L. c. 89, § 4A; a

speeding violation, G. L. c. 90, § 17; and possession of an open

container of alcohol, G. L. c. 90, § 24I. The defendant pleaded

guilty in District Court to the OUI charge. Five years later,

the defendant moved to withdraw his plea. The same judge who

had served as the plea judge denied the motion.

A motion to withdraw a guilty plea is treated as a motion

for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). Commonwealth v. Sylvester,

476 Mass. 1, 5 (2016). "We 'review the denial of a motion to

withdraw a guilty plea to determine whether there has been a

significant error of law or other abuse of discretion.'"

Commonwealth v. Barros, 494 Mass. 100, 111 (2024), quoting

Sylvester, supra. "Particular deference is to be paid to the

rulings of a motion judge who served as the [plea] judge in the

same case." Commonwealth v. Lewis, 96 Mass. App. Ct. 354, 357

(2019), quoting Sylvester, supra at 6.

In his motion, the defendant claimed that "newly discovered

evidence has come to light that 'casts real doubt on the justice

of the conviction.'" The defendant did not identify any such

evidence, but rather averred generally that "[h]ad I known the

breath test result obtained from me when I was arrested was not

going to be admissible at trial, I would not have entered a

guilty plea." The defendant also stated, without further

detail, that "his plea was involuntarily induced by intentional

government misconduct that has since been discovered."

At the defendant's plea hearing in 2016, the judge

conducted a thorough examination to determine whether the

defendant's waiver was knowing, voluntary, and intelligent based

on information known at the time about the reliability of

breathalyzer test results in OUI cases. At that time, hundreds

2 of OUI cases in Massachusetts had been consolidated for the

purpose of determining the reliability of breathalyzer test

results from the Draeger Alcotest 9510 breathalyzer and deciding

whether those results should be excluded. See Commonwealth v.

Hallinan, 491 Mass. 730, 737-738 (2023). The judge asked the

defendant at the plea hearing if he understood that his "case

was part dependent -- or attached to some litigation, pending

challenging the results of the breathalyzer test," and that "by

pleading today, [he was] giving up or waiving any rights that

[he] may have" in connection with that ongoing challenge to the

admissibility of breathalyzer test results. The defendant

responded, "Correct." Based on this record, we agree with the

judge's conclusion in 2022 that, at the time the defendant

pleaded guilty, "the defendant was aware of ongoing litigation

challenging admissibility of breath test results" and that "[h]e

made a knowing intelligent and voluntary waiver of his right to

have his case brought under what came to be known as the Ananias

decision." See Commonwealth vs. Ananias, Dist. Ct., No.

1248CR1075 (Feb. 16, 2017).

Nevertheless, the defendant did not waive his right to seek

appropriate remedies for government misconduct. After he

pleaded guilty, an investigation by the Executive Office of

Public Safety and Security "identified a history of intentional

3 withholding of exculpatory evidence by [the State police office

of alcohol testing (OAT)], blatant disregard of court orders,

and other misconduct." Hallinan, 491 Mass. at 740. One year

after the judge denied the defendant's motion to withdraw in

2022, the Supreme Judicial Court concluded in Hallinan that,

based on these findings, defendants who pleaded guilty or were

convicted after trial are "entitled to a conclusive presumption

of egregious government misconduct" if the evidence against them

included breathalyzer test results from a Draeger Alcotest 9510

breathalyzer device last calibrated and certified prior to April

18, 2019. Hallinan, 491 Mass. at 731. To withdraw a guilty

plea based on such misconduct, a defendant must also

"demonstrate a reasonable probability that he would not have

pleaded guilty had he known of [the] misconduct." Commonwealth

v. Scott, 467 Mass. 336, 355 (2014). The judge must consider

the following:

"(1) whether evidence of the government misconduct could have detracted from the factual basis used to support the guilty plea, (2) whether the evidence could have been used to impeach a witness whose credibility may have been outcome-determinative, (3) whether the evidence is cumulative of other evidence already in the defendant's possession, (4) whether the evidence would have influenced counsel's recommendation as to whether to accept a particular plea offer, and (5) whether the value of the evidence was outweighed by the benefits of entering into the plea agreement."

4 Hallinan, supra at 750, quoting Scott, supra. This two-pronged

analysis is known as the Scott-Ferrara test. See Hallinan,

supra.

As discussed, at the time he denied the defendant's motion,

the judge did not have the benefit of the Hallinan decision. He

was therefore unable to apply the presumption of egregious

government misconduct established by that decision or make any

findings whether there was a reasonable probability the

defendant would have not pleaded guilty had he known of the

misconduct. Although the Commonwealth has moved to expand the

appellate record to include the police report, this court cannot

make the required findings under the Scott-Ferrara test in the

first instance. Accordingly, we vacate the order denying the

defendant's motion to withdraw his guilty plea and remand for

further proceedings consistent with this memorandum and order.

So ordered.

By the Court (Desmond, Walsh & Toone, JJ.1),

Clerk

Entered: January 10, 2025.

1 The panelists are listed in order of seniority.