NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
18-P-638 Appeals Court
COMMONWEALTH vs. WILLIAM NAJJAR.
No. 18-P-638.
Middlesex. March 6, 2019. - November 21, 2019.
Present: Rubin, Kinder, & Singh, JJ.
Controlled Substances. Firearms. Constitutional Law, Plea, Sentence, Assistance of counsel, Waiver of constitutional rights. Due Process of Law, Plea, Sentence, Assistance of counsel. Practice, Criminal, Plea, Sentence, Assistance of counsel, Waiver, Self-representation. Waiver.
Indictments found and returned in the Superior Court Department on July 1, 2010.
A motion to withdraw guilty pleas, filed on April 7, 2017, was considered by Thomas P. Billings, J.
Amy Codagnone for the defendant. Konstantin Tretyakov, Assistant District Attorney, for the Commonwealth.
RUBIN, J. On September 23, 2013, the defendant pleaded
guilty to trafficking in cocaine, see G. L. c. 94C, § 32E (b),
four counts of distribution of cocaine, see G. L. c. 94C,
§ 32A (c), conspiracy to distribute cocaine, see G. L. c. 94C, 2
§ 40, possession of a firearm in the commission of a felony, see
G. L. c. 265, § 18B, and possession of ammunition without a
firearm identification card, see G. L. c. 269, § 10 (h) (1).
The plea judge accepted the defendant's guilty pleas and
sentenced him on the trafficking charge to imprisonment of not
fewer than eight years, the minimum mandatory sentence on that
charge, and not more than nine years. The plea judge also
sentenced the defendant to not fewer than eight years but not
more than nine years on the distribution and possession of a
firearm in the commission of a felony charges, to be served
concurrently with the sentence on the trafficking charge. On
the conspiracy and possession of ammunition without a firearm
identification card charges, the plea judge sentenced the
defendant to concurrent two-year probationary terms from and
after the committed sentences.
Approximately four years after sentencing, the defendant
filed a motion to withdraw his guilty pleas claiming that (1)
they were made without the assistance of counsel and without a
valid waiver of counsel, (2) they were not knowing and
voluntary, and (3) his counsel was ineffective for failing to
pursue a particular theory in support of a motion to suppress
evidence. A different judge (motion judge) denied the motion
without an evidentiary hearing, but revised and revoked the
prison sentence to not fewer than eight years but no more than 3
eight years and one day.1 The defendant presses the same
arguments on appeal. We vacate the order denying the
defendant's motion and remand for further proceedings.
1. Validity of the pleas. We turn first to the
defendant's claim that his pleas were not knowing and voluntary.
To satisfy the basic requirements of due process, a guilty plea
must be knowing -- courts sometimes use the word "intelligent"
-- and voluntary. Commonwealth v. Furr, 454 Mass. 101, 106
(2009). See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 637
n.5 (2007) ("Use of the term 'knowing' is but another way of
describing the longstanding requirement that a guilty plea be
made intelligently . . ."). The judge must ensure that the
defendant "has a full understanding of what the plea connotes
and of its consequence." Boykin v. Alabama, 395 U.S. 239, 244
(1969). He must understand the "direct consequences" of his
plea (citation omitted). Commonwealth v. Roberts, 472 Mass.
355, 362 (2015). These consequences include the mandatory
minimum sentence to which the defendant will be subject. See
Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 579 (2001)
(even when defendant pleads guilty and will be sentenced by
agreement to straight probation, maximum and mandatory minimum
1 This reduction was consistent with the defendant's sentencing recommendation and the plea judge's statement before the pleas regarding the sentences she was "likely to impose." 4
sentences that could be imposed following violation of probation
conditions are not "collateral to the crime to which the plea
[is] given. Rather, [they are] a direct consequence of, and in
recognition of, the crime and the plea thereto . . ."). See
also Commonwealth v. Murphy, 73 Mass. App. Ct. 57, 66-67 (2008)
(defective colloquy "risked not adequately informing the
defendant that failing to successfully complete his period of
probation could result in the imposition of a period of
incarceration for at least a minimum of twenty years"). This
means that a defendant cannot tender a constitutionally adequate
guilty plea without knowing that mandatory minimum sentence.
Indeed, this proposition has been "clearly established" for at
least a decade. Jamison v. Klem, 544 F.3d 266, 278, 279 (3d
Cir. 2008) ("it can not seriously be argued that serving five
years in prison pursuant to a mandatory minimum sentence is a
'collateral' consequence of a guilty plea and not a direct
result of it"; it is "clearly established" that a guilty plea
entered without knowledge of the mandatory minimum sentence
violates due process). See Boykin, supra at 243-244. See also
Vittitoe v. State, 556 So. 2d 1062, 1064 (Miss. 1990) ("A canvas
of state law authority reveals no fewer than two dozen cases
holding that guilty pleas made with ignorance of a minimum or
mandatory minimum sentence are unenforceable"). The 5
Commonwealth bears the burden to show the plea was knowing and
voluntary. Furr, supra at 107.
The trafficking charge carries an eight-year mandatory
minimum sentence. G. L. c. 94C, § 32H. In his affidavit, the
defendant asserts that during plea negotiations, after he told
the prosecutor that he had "no intention of pleading guilty to
an 8-year sentence," the prosecutor "declined to amend his terms
but advised [the defendant] of recent changes in legislation
that would permit [him] to earn good time on the trafficking
sentence, with parole eligibility in roughly half of the term."
The motion judge found those assertions "creditable," but
denied the defendant, who was acting pro se when he entered his
guilty pleas, an evidentiary hearing on the basis that the
information given by the prosecutor was not "material." Because
we conclude that the knowingness of the defendant's pleas
depends on whether the prosecutor misinformed the defendant, we
also conclude that there was error in denying the defendant's
motion in the absence of an evidentiary hearing or a finding of
fact on the question whether the defendant was in fact told that
by the prosecutor.
To begin with, as the motion judge found, the defendant's
assertion is creditable: there is no reason to disbelieve that
the prosecutor so advised the defendant, because at the
sentencing hearing a few days after the plea hearing, after the 6
judge sentenced the defendant, in response to the defendant's
question about eligibility for parole and good time credits, the
prosecutor interjected, "I do believe that because of the change
in the statute that there has been a change in the availability
of good time for min[imum] man[datory] sentences, so that is
more favorable to the defendant than it was before the change in
the law." The judge responded, "Right. But that's [not] for us
to be involved." This indicated the prosecutor's (and perhaps
even the plea judge's) incorrect belief, consistent with the
defendant's affidavit, that he would be eligible for parole and
good time credits, and that, hence, the defendant was not in
fact subject to an eight-year mandatory minimum sentence. The
Commonwealth does not dispute what the prosecutor told the
defendant, arguing only that "even if the prosecutor's
assertions about these matters were incorrect . . . , the
defendant is not entitled to withdraw his pleas."
If the defendant, then pro se, was told by the prosecutor
during plea negotiations that if he (the defendant) pleaded
guilty to charges including trafficking in cocaine, G. L.
c. 94C, § 32E (b), he would be subject to a minimum sentence of
eight years, but would be eligible for good time credits and
parole, such that he might be released after only "roughly half
of the term," it could well have formed the basis for the 7
defendant's belief about the actual minimum sentence he faced.2
Because the question before us is the voluntariness and
subjective knowingness of the defendant's guilty pleas, the
Commonwealth cannot prevail simply because the incorrect
statement by the prosecutor during plea negotiations may have
been inadvertent.
Even assuming the prosecutor made the erroneous statement
during plea bargaining, the defendant could perhaps have gained
knowledge of the consequences of his pleas at the change of plea
hearing. The plea judge, after all, was required under Mass. R.
Crim. P. 12 (c) (3) (A) (ii) (c), as appearing in 470 Mass. 1501
(2015),3 to tell the defendant both the maximum and the minimum
mandatory sentences that he faced on each of the charges to
which he was pleading. The plea judge, however, articulated the
maximum sentence but failed to articulate the mandatory minimum
sentence. This violated rule 12, but, more significantly for
present purposes, and, as relevant to the defendant's argument,
if the defendant were given by the prosecutor the erroneous
2 Indeed, as described in the text supra, the defendant expressed surprise at the sentencing hearing that he would not get good time credits or be eligible for parole, and the prosecutor's (once again) mistaken statement that the defendant would receive at least good time credits appears to have been intended precisely to reassure him.
3 We note that the plea hearing was held prior to the amendment of rule 12, which appears at 482 Mass. 1499 (2019). 8
information the defendant describes, the failure of the plea
judge at the colloquy to inform the defendant of the mandatory
minimum sentence on the charges to which the defendant was
pleading guilty, and the absence of any other evidence on the
issue, means the Commonwealth cannot on the record before us
satisfy its burden to prove that the defendant subjectively knew
that, by pleading guilty, he would be subject to a minimum of
eight years of imprisonment.
As a matter of due process, unknowing pleas are void.
McCarthy v. United States, 394 U.S. 459, 466 (1969). They must
be vacated regardless of whether the court concludes that, if
properly informed about the consequences of his plea, the
defendant would have nonetheless pleaded guilty. "As a general
proposition of constitutional law, a guilty plea must be vacated
or nullified unless the record of the plea proceedings
demonstrates that the defendant entered the plea knowingly and
voluntarily. [Boykin, 395 U.S. at 242-243]." Rodriguez, 52
Mass. App. Ct. at 581.
If the prosecutor did misinform the defendant as he
asserts, and if he, in fact, subjectively did not understand at
the time of the pleas that he was subject to a minimum mandatory
sentence, he is entitled to have the trafficking guilty plea
vacated. There must therefore be a finding of fact on these
issues by the motion judge. Consequently, we will vacate the 9
order denying the defendant's motion and remand for such finding
by the motion judge, who may on remand also hold an evidentiary
hearing at which either party may introduce evidence on one or
both issues, i.e., whether the defendant was misinformed and
what his subjective understanding was.
The Commonwealth posits initially that "the defendant was
aware of the minimum sentence for trafficking in cocaine . . . ,
but also that he was asking the court to impose exactly that
sentence understanding that the term of his imprisonment could
not be 'any lower than that.'" But the question is not whether
the defendant knew the minimum sentence. It is whether he knew
it was mandatory, that is, that he would not be eligible for
good time credits and parole.
As to this question, the Commonwealth argues that it does
not matter whether he knew that, relying primarily on
Commonwealth v. Indelicato, 40 Mass. App. Ct. 944, 945 (1996), a
case involving an alleged failure of defendant's counsel to
advise the defendant that his conviction would limit his ability
to obtain a firearm permit, in which we said, "A guilty plea is
not necessarily regarded as having been made involuntarily or
unintelligently because a defendant has received inaccurate or
incomplete advice from his counsel concerning the penal
consequences of the plea." In addition, we noted in dictum that 10
"[m]istaken advice as to parole eligibility . . . has been held
not to vitiate the basis for a plea." Id.
Notwithstanding the skillful argument by counsel for the
Commonwealth, the issue here is not the defendant's knowledge
about parole eligibility, but whether he was told as required by
the due process clause that a consequence of his plea would be
an eight-year mandatory minimum sentence. It changes nothing
that the prosecutor happened to misinform the defendant of this
by telling him that among the reasons his sentence was not
mandatory was eventual parole eligibility. In any event, the
only cases Indelicato cites that found pleas knowing and
voluntary despite inaccurate advice of defense counsel are
Commonwealth v. Cepulonis, 9 Mass. App. Ct. 302 (1980), and
Commonwealth v. Stanton, 2 Mass. App. Ct. 614 (1974), in both of
which the court held only that "predictions by counsel as to the
time which a defendant might have to serve," Cepulonis, supra at
309, quoting Stanton, supra at 622, do not render a plea
unknowing because, as we said in Cepulonis, supra at 310, an
inmate's receipt of parole is "highly dependent on a variety of
discretionary factors which are usually considered and applied
on a case-by-case basis under applicable statutory and
regulatory formulae." See Stanton, supra ("The judge was not
required to advise the defendant on the legal and practical
complexities of the parole law"). In fact, in Cepulonis, supra, 11
we made clear that "a plea's validity might be affected by
manifestly erroneous advice as to the time of confinement given
to a defendant," and in Stanton, supra, we specifically
distinguished a case in which a defendant "misunderstood his
rights with respect" to eligibility for parole, which is what
the defendant asserts happened in this case.
The dissent does not disagree that a plea cannot be knowing
in the absence of knowledge of any minimum mandatory sentence,
or that an unknowing plea must be vacated without inquiry into
whether the defendant would have pleaded guilty had he been
properly informed of the direct consequences of the plea. Post
at . The dissent takes a different tack, but it rejects only
an argument the defendant does not make, concluding that the
failure of the plea judge to advise the defendant of the
mandatory minimum sentence, which, as described supra, violated
rule 12, does not, standing alone, require reversal of the order
denying the defendant's motion to withdraw his guilty pleas.
Post at note 1 ("failure to advise a defendant of the mandatory
minimum sentence" not "an error of constitutional dimension
requiring automatic vacatur of a guilty plea" [emphasis added]).4
4 In support of its position, the dissent, post at , cites Hiskin, a case about a failure of the judge to give all the information required by rule 12. See Hiskin, 68 Mass. App. Ct. at 641-642 ("Advice as to the statutorily prescribed sentence, or that to be imposed upon acceptance of the plea, is 12
But this conflates the requirement of what the judge must
tell the defendant under rule 12 with the requirement of what
the defendant must know -- from some source -- in order for his
plea to be knowing under the due process clause. The failure of
the plea judge to inform the defendant of a piece of information
required by the rule will not automatically entitle a defendant
to withdraw his guilty plea. See, e.g., Rodriguez, 52 Mass.
App. Ct. at 580. In that context, we ask whether a judge's
advice would have "made a difference" to a defendant's decision
to plead guilty. Id. But where a defendant lacks actual
knowledge of what the plea connotes or of the direct
consequences of the plea, it is unknowing in a constitutional
sense, and must be vacated without any such inquiry.5 To be
not among the 'consequences of the plea' necessary for a plea to be intelligent under the Federal or State constitutions. To the extent that advice about sentencing consequences may have been required, the requirement was one of rule" [emphases added]). And in reiterating the point with the language quoted in the parenthetical in the test, the dissent cites a case in which we held that a judge's failure to inform a defendant of the mandatory minimum sentence in violation of rule 12 does not violate the Constitution and thus require "automatic reversal," but only so long as the defendant has an actual, subjective understanding of the mandatory minimum sentence. See Murphy, 73 Mass. App. Ct. at 67. See also id. at 63, quoting Rodriguez, 52 Mass. App. Ct. at 580 ("We will not assume that the defendant's plea was involuntary and unknowing and say as a matter of law that justice was not done simply because the record reflects noncompliance with rule 12").
5 Thus, in Rodriguez, 52 Mass. App. Ct. at 581, for example, on which the dissent principally relies, we did, as the dissent 13
sure, Rule 30 (b), as appearing in 435 Mass. 1501 (2001), of the
Massachusetts Rules of Criminal Procedure authorizes judges to
allow motions for a new trial only if "it appears that justice
may not have been done." But no materiality analysis must be
undertaken in cases such as this because "[i]n the context of a
guilty plea, justice is not done when a defendant's plea of
guilt is not intelligent and voluntary." Hiskin, 68 Mass. App.
Ct. at 637.6 And of course the dissent acknowledges, as it must,
says, "affirm[] the order denying a motion to withdraw a defendant's guilty plea based on the defendant's claim that he was not informed of the mandatory minimum sentence" as required by rule 12 (emphasis added). Post at . But, because Rodriguez also claimed, as the defendant does in this case, that his plea was not knowing, we independently examined whether the defendant "had actual knowledge of the relevant information," concluding that his claim to the contrary was not credible, and that, as a consequence, despite the judge's failure, the plea was "knowingly and voluntarily made" (citation omitted). Rodriguez, supra at 583.
6 "We reject the Commonwealth's contention that the defendant's argument must fail automatically because he did not allege that he suffered any specific harm from the deficient plea colloquy, or that he would not have pleaded guilty had he been given a proper colloquy. When a defendant has received a constitutionally inadequate plea colloquy, he is entitled to withdraw that plea. . . . The defendant need not make any further showing in order to withdraw his plea." Commonwealth v. Colon, 439 Mass. 519, 529 (2003). See McCarthy, 394 U.S. at 466 ("if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void").
Even were we to undertake a materiality analysis, the dissent does not explain why, if the prosecutor was content with an eight-year sentence with a possibility of parole and good time credits, he might not have adjusted the charges to allow a 14
that "the motion judge did not make findings" on whether "the
defendant subjectively knew" the minimum sentence to which he
was subject was a mandatory minimum.7 Post at .
Finally, although it forms no part of our analysis, we note
that an alternative holding today might invite prosecutors not
plea with that result if informed of his error about the mandatory nature of the trafficking sentence.
7 In a footnote, the dissent asserts that "the record suggests that the defendant was well aware of the eight-year mandatory minimum sentence." Post at note 4. As the dissent notes, during the plea colloquy, the prosecutor did once use the word "mandatory" in referring to the sentence; the prosecutor stated that "there has been a reduction in the minimum mandatory penalty, that the minimum sentence for trafficking cocaine over 100 grams has been changed retroactively to be eight years, rather than ten years." Id. However, the record makes clear that when the prosecutor used the term "minimum mandatory" he (incorrectly) included nonmandatory minima. Indeed, as described above, at sentencing the prosecutor said on the record, "For Mr. Najjar, I do believe that because of the change in the statute that there has been a change in the availability of good time for min[imum] man[datory] sentences." A single reference to an eight-year minimum mandatory by a prosecutor laboring under a fundamental misunderstanding of the concept, and who previously told the defendant that good time credits and parole would be available under the sentence he would be ordered to serve, cannot satisfy the Commonwealth's burden to prove that the defendant subjectively knew that, by pleading guilty, he would be subject to a minimum of eight years of imprisonment.
The dissent also cites the defendant's statement that eight years was a long period of rehabilitation and he "[did not] see the court going any lower than that." Post at note 4. But this means only what it says: that the plea judge would impose an eight-year sentence.
In any event, it will be up to the motion judge on remand to make a finding about the subjective knowledge of the defendant. 15
to take due care when informing defendants -- in this case a pro
se defendant -- of the actual sentences to which they will be
subject should they agree to a plea deal proffered by the
government. Given the seriousness of our prosecutors'
responsibility with respect to these matters, we should not
lightly do anything that might undermine the seriousness with
which they appropriately take it.
Consequently, the order denying the motion to withdraw the
guilty pleas must be vacated and the case remanded for the judge
to make the relevant factual findings, after an evidentiary
hearing if he finds one necessary. Because the question whether
the unknowingness of the trafficking plea also would require
vacatur of the other pleas has not been briefed in this court,
the motion judge should address the issue in the first instance
on remand if he concludes that the trafficking plea was
unknowing under the standard we have described. Because we
express no opinion on that issue, we turn to the defendant's
other arguments, which, if successful, would require vacatur of
all of his guilty pleas.
2. Validity of defendant's waiver of right to counsel.
The defendant claims that his guilty pleas were unconstitutional
because there was no good cause to allow him to proceed pro se 16
prior to the plea hearing and his waiver of the right to counsel
was not knowing and voluntary.8 We disagree.
"The guaranties of the Sixth Amendment to the Constitution
of the United States provide a criminal defendant with the right
to effective assistance of counsel at each critical stage of the
proceedings against him, including a hearing where he pleads
guilty." Cepulonis, 9 Mass. App. Ct. at 304. However, "even in
cases where the accused is harming himself by insisting on
conducting his own defense, respect for individual autonomy
requires that he be allowed to go to jail under his own banner
if he so desires and if he makes the choice with eyes open"
(quotation and citation omitted). Commonwealth v. Mott, 2 Mass.
App. Ct. 47, 52 (1974). The defendant's right to represent
himself is not unqualified. It must be unequivocal and the
judge must be "satisfied that the right is being exercised
knowingly and intelligently, and not for an ulterior purpose."
Id. at 51. But it is the defendant's right, and it is not for
the judge to deny the knowing and voluntary exercise of that
right simply because the judge recognizes, as he or she will in
most every case, that it is a poor decision. Once the request
to proceed pro se has been made, "[t]he motivation of the
accused in making the request should be examined," but only to
8 The defendant's request to proceed pro se was made via counsel's motion to withdraw, made at the defendant's request. 17
ensure that there is no ulterior motive, "and the accused should
be apprised of the pitfalls in proceeding pro se." Id. at 52.
The defendant's right to proceed pro se can be circumscribed if
it is raised during or on the eve of trial. It is in these
situations that the judge must weigh "the interests of the
courts and the public in efficient trial administration" with "a
showing of good cause to support the defendant's motion."
Commonwealth v. Chavis, 415 Mass. 703, 712 (1993). In these
cases, a good cause requirement is interposed as a limit to the
defendant's right. It is designed to protect efficient trial
administration, not to protect a defendant from making a poor
decision. Thus, here, even though the motion to proceed pro se
was made during the trial, the plea judge allowed the motion, so
the defendant has no complaint based on good cause. We agree
that when allowing the defendant's motion to proceed pro se the
plea judge did not, as required, inquire into the reasons the
defendant sought to represent himself at trial. See Mott, supra
at 51-52. However, given the course of the proceedings before
the plea judge, any error was not prejudicial, as it would have
been clear to her that there was no ulterior purpose in the
defendant's request. Against the advice of his fourth lawyer,
the defendant insisted on pursuing an argument that the wiretap
warrant applications were flawed because the Commonwealth had
intentionally omitted his name from the warrant applications to 18
gain a tactical advantage. Two days before his motion to
proceed pro se was allowed, the defendant appeared before the
plea judge and sought to proceed pro se to argue a motion for
reconsideration of the order denying his motion to suppress then
pending before another judge (suppression judge). The defendant
explained to the plea judge that he had an opinion different
from his attorney's regarding the content of the motion to
reconsider and wanted to represent himself to argue the motion.
The plea judge did not act on the request to proceed pro se, but
she reminded the defendant that he had had "a string of very
good lawyers" who were "competent and qualified to represent"
him. The plea judge concluded the hearing by explaining that
she would contact the suppression judge to inquire about the
status of the defendant's motion to reconsider. She told the
defendant, "[W]hen you come in on Friday, if there are further
issues that need to be addressed relative to that, . . . then
we'll take it up then. But at the moment, we're going to trial
on Friday."
Two days later, as the trial was about to begin, the
defendant filed pro se an amended motion for reconsideration and
request for an evidentiary hearing further explaining his legal
theory. The plea judge informed the defendant and his counsel
that there would be no further delays and that trial would
commence. Defense counsel filed a motion to withdraw and 19
informed the plea judge that "[my client] desires to exercise
his Constitutional right to represent himself, and so he's asked
me to withdraw." The plea judge then engaged in a colloquy that
was adequate except for the absence of a question about the
reason the defendant sought to represent himself. Given this
course of events, though, the plea judge was well aware of the
defendant's motives. The motives may not have amounted to what
someone trained in the law would describe as good cause, but
they were not ulterior. And indeed, after the defendant's
request to represent himself was allowed, the plea judge heard
argument from the defendant and allowed him further time to
pursue his suppression theory by filing an emergency petition
for interlocutory relief with the Supreme Judicial Court
pursuant to G. L. c. 211, § 3. The petition was denied later
that day. The judge empaneled a jury, but the change of plea
occurred before opening statements.
The defendant now argues that his decision to proceed pro
se was not voluntary and intelligent, because it was not the
case -- and he falsely believed -- that counsel's withdrawal was
necessary for him to present his desired arguments, which, he
argues, counsel could have filed himself under Commonwealth v.
Moffett, 383 Mass. 201 (1981). Moffett, however, deals with
counsel's opinion that an argument is "frivolous or otherwise
lacking in merit," id. at 207, and the record reveals that the 20
difference of opinion between counsel and the defendant did not
turn on counsel's judgment that the motion was frivolous. We
have compared the motion for reconsideration submitted by
counsel with that submitted by the defendant. The motions are
framed differently, but the arguments supporting them are
essentially the same -- indeed, most of the defendant's motion
appears to have been copied from counsel's motion. Counsel's
reason for not submitting the defendant's motion appears,
rather, to have been strategic, not based on any conclusion that
the motion was frivolous. Indeed, counsel had filed a motion to
withdraw some five months earlier due to similar disagreements
about how to present the motion for reconsideration, a motion
that was denied without prejudice.9 A strategic disagreement
with counsel cannot be addressed by the Moffett procedure.
Thus, the availability of that procedure has no bearing on the
correctness of the motion judge's conclusion that the decision
to proceed pro se was voluntary and intelligent.
We also agree with the defendant that the plea judge erred
in failing to ask the defendant to sign a written waiver of
9 That the disagreement was strategic is supported by statements made by the defendant and counsel at that hearing. The defendant stated: "I just, me and [counsel] just share different views on the motion, and I just feel as if I can articulate the argument, you know, more stronger myself." Counsel's comments were similar: "It's an odd circumstance in that my client and I disagree materially on how to proceed on the case." 21
counsel and to certify the written waiver as required by Mass.
R. Crim. P. 8, as amended, 397 Mass. 1226 (1986), and S.J.C.
Rule 3:10, as appearing in 475 Mass. 1301 (2016). But "[t]he
absence of a written counsel waiver does not alone require
reversal, provided there is sufficient other evidence in the
record to demonstrate that the waiver was voluntary and
intelligent." Commonwealth v. Leonardi, 76 Mass. App. Ct. 271,
277 (2010). See Commonwealth v. Pamplona, 58 Mass. App. Ct.
239, 242-243 (2003). Given the judge's extensive pretrial
dialogue with the defendant regarding the reason he wished to
proceed pro se, the otherwise thorough colloquy, and the
defendant's unequivocal responses, we are confident that the
defendant was "adequately aware of the seriousness of the
charges, the magnitude of his undertaking, the availability of
advisory counsel, and the disadvantages of self-representation."
Commonwealth v. Jackson, 376 Mass. 790, 795 (1978).
3. Ineffective assistance of counsel. Finally, the
defendant claims that his second attorney was ineffective in his
presentation of the motion to suppress evidence for failing to
pursue an argument that the Commonwealth had violated the
constitutional particularity requirement and the wiretap
statute, G. L. c. 272, § 99, by intentionally omitting the
defendant's name from the wiretap applications and warrants in
order to prevent an adverse probable cause determination. The 22
defendant alleged the Commonwealth did so because it had
"insufficient evidence as to [the defendant's] identity to meet
the probable cause standard." Ordinarily, to prevail on a
motion to withdraw a plea for ineffective assistance of counsel,
a defendant is required to "show[] that his attorney's
performance fell 'measurably below that which might be expected
from an ordinary fallible lawyer,' and that he suffered
prejudice because of his attorney's unprofessional errors."
Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting
Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). Here, he must
demonstrate that the motion to suppress that forms the basis of
his claim would likely have succeeded. See Commonwealth v.
Buckman, 461 Mass. 24, 40 (2011).
The motion judge concluded that, despite the omission of
the defendant's name in the wiretap warrants and applications,
his role in the drug operation "was apparent in the affidavits
supporting the extensions of the original wiretap warrant" and
the warrant applications clearly set forth probable cause.
Therefore, the motion judge concluded that omission of the
defendant's name from the warrant applications was not grounds
for suppression. We discern no error in this conclusion.10
10 The defendant also argues that his second counsel was ineffective because he was friends with one of the prosecutors who wrote the warrant application, and argues that counsel did 23
4. Conclusion. The order denying the motion to withdraw
the guilty pleas is vacated, and the case is remanded for
further proceedings consistent with this opinion, including the
holding of an evidentiary hearing should the motion judge
conclude it is necessary. If the judge concludes that the
defendant was in fact misinformed by the prosecutor about the
mandatory minimum and that the defendant did not know at the
time of his pleas that that was the type of sentence he would be
subject to, the motion to withdraw his guilty plea on the
trafficking charge shall be allowed. If the plea to the
trafficking charge is withdrawn, the motion judge should
determine in the first instance whether this requires vacatur of
all the defendant's pleas or only that one, an issue not briefed
in this appeal.
So ordered.
not make the above argument so as not to sully his friend's reputation. While "genuine" conflicts require reversal without prejudice, "potential" and "tenuous" ones require a showing of prejudice. Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986). A genuine conflict exists when the attorney's independent professional judgment has been impaired "either by his own interests, or by the interests of another client," which it is the defendant's burden to show. Id. The defendant has not cited a case in which friendship with opposing counsel constituted a genuine conflict requiring automatic reversal, nor has he satisfied his burden to show that counsel's independent professional judgment was impaired. If this relationship created a conflict at all, it was at most tenuous or potential, and, for the reasons above, the defendant has failed to show prejudice. KINDER, J. (dissenting). Faced with evidence against him
that the motion judge described as "overwhelming," the defendant
filed a motion to suppress the fruits of the wiretap warrant
that resulted in the seizure from his residence of 190 grams of
cocaine, more than $20,000 in cash, and a firearm. When a
succession of four appointed lawyers refused to adopt the
defendant's strategy on his motion to suppress, the defendant
sought and received the plea judge's permission to represent
himself. After the defendant's suppression theory was rejected
in both the Superior Court and the Supreme Judicial Court, he
negotiated a favorable plea agreement with the Commonwealth,
which resulted in a sentence of no less than eight years'
imprisonment, the mandatory minimum sentence on his drug
trafficking charge.
Four years later the defendant filed a motion to withdraw
his guilty pleas arguing, among other things, that he did not
know he faced a mandatory minimum eight-year sentence on the
drug trafficking charge. Specifically, the defendant claimed
that he was misled by the prosecutor regarding his eligibility
for good time credit and parole. The motion was denied in a
thorough and well-reasoned written decision. I agree with the
motion judge that the prosecutor's statements, if made, were
"unfortunate and avoidable." I also agree with the majority
that the plea judge erred in failing to specifically inform the 2
defendant during the plea colloquy that the mandatory minimum
sentence on the drug trafficking charge was eight years.
However, I discern no abuse of discretion in the motion judge's
conclusion that, even assuming the prosecutor's misstatements,
the defendant's eligibility for good time credit and parole was
not material to his decision to plead guilty. Accordingly, I
respectfully dissent.
A motion to withdraw a guilty plea is treated as a motion
for a new trial under Mass. R. Crim. P. 30 (b), as appearing in
435 Mass. 1501 (2001), see Commonwealth v. Scott, 467 Mass. 336,
344 (2014), and may be granted only "if it appears that justice
may not have been done," Mass. R. Crim. P. 30 (b). Judges are
to apply the rule 30 (b) standard "rigorously, and should only
grant a postsentence motion to withdraw a plea if the defendant
comes forward with a credible reason which outweighs the risk of
prejudice to the Commonwealth." Commonwealth v. Wallace, 92
Mass. App. Ct. 7, 10 (2017), quoting Commonwealth v. Fanelli,
412 Mass. 497, 504 (1992). "The judge is the final arbiter on
matters of credibility" (quotation and citation omitted), Scott,
supra, and his or her decision to deny a motion to withdraw a
plea "will not be reversed . . . unless it is manifestly unjust,
. . . or unless the plea colloquy was infected with prejudicial
constitutional error" (emphasis added), Commonwealth v. Correa,
43 Mass. App. Ct. 714, 716 (1997), and cases cited. 3
The United States Constitution requires that a defendant
who decides to plead guilty "has a full understanding of what
the plea connotes and of its consequence." Boykin v. Alabama,
395 U.S. 239, 244 (1969). To be valid, a guilty plea must be
intelligent and voluntary. Commonwealth v. Hiskin, 68 Mass.
App. Ct. 633, 637 (2007). "A guilty plea is intelligent if it
is tendered with knowledge of the elements of the charges
against the defendant and the procedural protections waived by
entry of a guilty plea." Scott, 467 Mass. at 345. It "is
voluntary so long as it is tendered free from coercion, duress,
or improper inducements." Id. In Massachusetts, "[a]dvice as
to the statutorily prescribed sentence, or that to be imposed
upon acceptance of the plea, is not among the 'consequences of
the plea' necessary for a plea to be intelligent under the
Federal or State constitutions." Hiskin, supra at 641-642.1 "To
the extent that advice about sentencing consequences [is]
1 The majority correctly points out, ante at , that a constitutionally inadequate plea colloquy renders a guilty plea void, without regard to prejudice. See Commonwealth v. Colon, 439 Mass. 519, 529 (2003). However, in Colon the plea was constitutionally inadequate because the plea judge failed to advise the defendant of the nature of the charges or the elements of the offenses. Id. at 520-521. I have found no Massachusetts authority for the proposition that failure to advise a defendant of the mandatory minimum sentence is an error of constitutional dimension requiring automatic vacatur of a guilty plea. Indeed, we previously said that it is not. See Commonwealth v. Murphy, 73 Mass. App. Ct. 57, 65-67 (2008) (automatic reversal not required where defendant not informed of mandatory minimum sentence.) 4
required, the requirement [is] one of rule." Id. at 642, citing
Mass. R. Crim. P. 12 (c) (3) (B), 378 Mass. 868 (1979).
It is true that the plea judge failed to adhere strictly to
rule 12 (c) (3) (B) when she did not specifically inform the
defendant that the eight-year term on the trafficking charge was
the mandatory minimum. But noncompliance with rule 12 (c) is
only one factor to be considered in deciding whether the
defendant's plea was knowingly and voluntarily made.
Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 580 (2001).
We also consider "the full record," Commonwealth v. Williams, 71
Mass. App. Ct. 348, 355 (2008), and "the defendant's sworn
responses to the judge's informed questions made in the
solemnity of a formal plea proceeding," Hiskin, 68 Mass. App.
Ct. at 638. Here, at the time that she found the defendant's
guilty pleas were knowing and voluntary, the plea judge had (1)
heard the defendant make legal arguments in support of his
motion to suppress, (2) observed him participate in jury
selection at trial, (3) considered the contents of a guilty plea
form executed by the defendant,2 and (4) engaged the defendant in
2 I note that the written waiver of rights form executed by the defendant with the help of standby counsel is not included in the record appendix. See Commonwealth v. Furr, 454 Mass. 101, 109 (2009) (signed waiver of rights form "may properly be considered as part of the plea record to support a finding that the plea was made intelligently"); Commonwealth v. Goodreau, 442 5
two colloquies.3 During the plea colloquy, the defendant
expressed no confusion or concern about the sentence he faced.
Indeed, under oath, the defendant professed that he understood
the potential sentence, no one had forced him to plead guilty,
he had adequate time to speak with his family and standby
counsel regarding his decision to plead guilty, and he was
pleading guilty of his own free will. "Such professions must
mean something, and must have consequence, if guilty plea
colloquies are to be more than stylized and empty formalities."
Id. at 640. Based on this record, the motion judge acted within
his discretion in rejecting, without an evidentiary hearing, the
defendant's claim that his guilty plea was not knowingly made.
See Commonwealth v. Torres, 469 Mass. 398, 402-403 (2014)
(evidentiary hearing required only when defendant raises
substantial issue).4
Mass. 341, 354 (2004) ("When weighing the adequacy of the materials submitted in support of a motion for a new trial, the judge may take into account the suspicious failure to provide pertinent information from an expected and available source").
3 In addition to the plea colloquy, the plea judge engaged the defendant in a colloquy regarding his waiver of counsel.
4 While the motion judge did not make findings regarding what the defendant subjectively knew about the sentence he faced on the trafficking charge, the record suggests that the defendant was well aware of the eight-year mandatory minimum sentence. The prosecutor referred to the eight-year sentence as a mandatory minimum during the plea colloquy, and the defendant acknowledged that eight years was a long period of 6
While there is some superficial appeal to the majority's
suggestion that the case should be returned to the motion judge
for factual findings on exactly what the prosecutor told the
defendant, the motion judge ruled that, even if the defendant
was misled regarding his eligibility for good time credit and
parole, it was not material to his decision to plead guilty.
Ante at . I agree and see no abuse of discretion in the
motion judge's weighing of the relevant factors. See L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014). The record does
not support a conclusion that "compliance with rule 12 would
have made a difference in the decision of the defendant to plead
guilty." Rodriguez, 52 Mass. App. Ct. at 580. In Rodriguez,
this court affirmed the order denying a motion to withdraw a
defendant's guilty plea based on the defendant's claim that he
was not informed of the mandatory minimum sentence. Id. at 583-
584. Because the defendant in that case did not (1) claim
innocence, (2) identify a plausible defense, or (3) explain how
he would have benefited from proceeding to trial, the court
concluded that the "record, considered in light of the
discretion given to judges dealing with rule 30 (b) motions" did
not indicate that justice was not done. Id. at 583, quoting
Commonwealth v. Grant, 426 Mass. 667, 673 (1998). Here, the
rehabilitation and that he "[did not] see the court going any lower than that." 7
defendant is similarly situated and I see no reason to reach a
different result.
The record shows that the defendant knew, when the trial
began, that his primary theory of defense -- the motion to
suppress -- had been rejected in the Superior Court and by a
single justice of the Supreme Judicial Court. The defendant
also knew that the jury would hear evidence that he participated
in multiple recorded conversations during which he arranged to
deliver cocaine to one of his coconspirators; he made the
deliveries of cocaine that he had promised; and a large quantity
of cocaine, currency, and a firearm were seized at his
residence. I agree with the motion judge that this evidence was
"overwhelming," which is perhaps why "the defendant has not
addressed why he would have benefited from going to trial, and
he has made no claim of innocence." Rodriguez, 52 Mass. App.
Ct. at 581.
The record also shows that the defendant knew that a guilty
plea would likely result in a sentence of eight years, but if he
was convicted at trial he faced a maximum sentence of life in
prison and an assurance from the prosecutor that he would ask
for a five-year consecutive sentence on the charge of possessing
a firearm in the commission of a felony. Considering the
strength of the evidence, the absence of any plausible defense,
the favorable disposition negotiated by the defendant, and the 8
fact that the defendant waited four years to claim that his plea
had not been knowing and voluntary, the motion judge rejected
the defendant's assertion that he would have proceeded to trial
had he known that he would not be eligible for parole and good
time. In these circumstances, I cannot conclude that this was
an abuse of his discretion. See Commonwealth v. Santiago, 394
Mass. 25, 30 (1985) (defendant must show plea primarily
motivated by prosecutor's representation and not by "assortment
of pressures that are intrinsic to such a situation");
Commonwealth v. Hoyle, 67 Mass. App. Ct. 10, 13 (2006) (delay in
raising issue is "indicium of satisfaction with the plea
agreement"); Rodriguez, 52 Mass. App. Ct. at 583 ("plea of
guilty is made under a variety of considerations and pressures,
no one of which necessarily renders the plea involuntary");
Commonwealth v. Indelicato, 40 Mass. App. Ct. 944, 945 (1996)
(defense counsel's mistaken advice as to penal consequences of
plea does not render plea involuntary and unintelligent).
Because the record does not support a conclusion "that denial of
the defendant's motion was manifestly unjust" (quotation and
citation omitted), Grant, 426 Mass. at 673, and because I see no
abuse of discretion or error of law in the motion judge's
decision to deny the defendant's motion to withdraw his guilty
pleas, I would affirm.