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-957
COMMONWEALTH
vs.
TIMOTHY J. TRACY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Timothy J. Tracy, appeals from the denial of
his motion to withdraw his guilty plea to a charge of operating
a motor vehicle under the influence of alcohol (OUI), second
offense, in violation of G. L. c. 90, § 24 (1) (a) (1). We
affirm.
Background. In 2015, the defendant was charged in the
District Court with OUI, second offense, after causing a
multiple vehicle crash. According to the citation, the location
of the offense was "I91 NB Exit 5 Springfield." He admitted to
sufficient facts and the plea judge continued the case without a
finding for one year, conditioned on the defendant's attending a
driver alcohol education program, and suspended the defendant's driver's license for forty-five days. After the defendant
violated the terms of probation, a different judge entered a
guilty finding and sentenced the defendant to a 127-day house of
correction term, to be served at a substance abuse treatment
facility.
Over seven years later, with the record of the guilty plea
colloquy no longer available due to the passage of time, and
with plea counsel having retired and no longer possessing the
file or any memory of the case, the defendant moved to withdraw
his plea based on ineffective assistance of counsel and "newly
discovered evidence," (i.e., the Commonwealth's use of the
Draeger Alcotest 9510 breathalyzer device). After a
nonevidentiary hearing, a third judge denied the motion, and the
defendant timely appealed.
Discussion. 1. Ineffective assistance of counsel. In the
defendant's affidavit in support of his motion, he claimed that
plea counsel was ineffective for failing to investigate the
existence of a "massive pothole" on Interstate 91 northbound,
which "would have shown that [the defendant's] driving ability
was not diminished but a reasonable response to road defects."
Had plea counsel obtained the documentation of the pothole that
the defendant submitted with his motion, the defendant claims,
he would not have agreed to plead guilty. The judge implicitly
2 discredited the defendant's affidavit, finding that the
defendant received a very favorable disposition for a charge of
OUI, second offense, and that the answers the defendant would
have given at a typical plea colloquy were inconsistent with his
current claims that he did not wish to plead guilty and was
unsatisfied with counsel's representation. The judge also found
"no nexus" between the potholes listed in the defendant's
exhibits and where the accident occurred.1
Under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass.
1501 (2001), a judge may grant a motion for new trial "if it
appears that justice may not have been done." "Judges are to
apply the standard set forth in rule 30(b) rigorously and should
only grant such a motion if the defendant comes forward with a
credible reason which outweighs the risk of prejudice to the
Commonwealth." Commonwealth v. Wheeler, 52 Mass. App. Ct. 631,
635-636 (2001). "In a new trial motion asserting ineffective
assistance of counsel, whether justice may not have been done
equates with whether counsel was constitutionally ineffective."
Id. at 636. We discern no error of law or abuse of discretion
in the motion judge's determination that the defendant did not
meet his burden of showing that plea counsel's failure to pursue
1 The defendant's brief does not contest the motion judge's finding in this regard.
3 the putative pothole defense was conduct falling measurably
below that of an ordinary, fallible attorney, or that counsel's
conduct deprived the defendant of a substantial ground of
defense. See Commonwealth v. Simon, 481 Mass. 861, 866 (2019);
Commonwealth v. Testa, 102 Mass. App. Ct. 149, 155 (2023).
In addition to the factors noted by the motion judge, we
add that in the police report, although the trooper reported
that the defendant was at first agitated, yelled at the trooper,
demanded a breath test, and later became polite and cooperative,
at no time did the defendant mention swerving to avoid a
pothole. Likewise, at the plea hearing, the defendant
acknowledged under oath that the evidence was sufficient to
prove him guilty of OUI.2 "The defendant's sworn statements must
not be discarded on the later assertion that he had his fingers
crossed." Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 640
(2007).
2. Breathalyzer test. The defendant also argues that he
should have been permitted to withdraw his guilty plea based on
2 As the defendant has not attacked the adequacy of his plea colloquy, the motion judge properly presumed, as do we, that it included the regular warnings, waivers, and admissions. See Commonwealth v. Hoyle, 67 Mass. App. Ct. 10, 14-15 (2006). "Central to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment." Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 639 (2007), quoting Brady v. United States, 397 U.S. 742, 748 (1970).
4 the Commonwealth's use of the Draeger Alcotest 9510 breathalyzer
device to take his blood alcohol level at the State police
barracks. Where, as here, it is established that the
Commonwealth conducted a breathalyzer test using this device
during the relevant time period, the defendant is entitled to a
presumption that egregious government misconduct occurred. See
Commonwealth v. Hallinan, 491 Mass. 730, 749-750 (2023). To be
permitted to withdraw his guilty plea, however, the defendant
must also demonstrate, under the totality of the circumstances,
a reasonable probability that he would not have pleaded guilty
had he known the results of the test would have been
inadmissible. See id. at 750. Factors used to determine if
such a reasonable probability exists include the following:
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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-957
COMMONWEALTH
vs.
TIMOTHY J. TRACY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Timothy J. Tracy, appeals from the denial of
his motion to withdraw his guilty plea to a charge of operating
a motor vehicle under the influence of alcohol (OUI), second
offense, in violation of G. L. c. 90, § 24 (1) (a) (1). We
affirm.
Background. In 2015, the defendant was charged in the
District Court with OUI, second offense, after causing a
multiple vehicle crash. According to the citation, the location
of the offense was "I91 NB Exit 5 Springfield." He admitted to
sufficient facts and the plea judge continued the case without a
finding for one year, conditioned on the defendant's attending a
driver alcohol education program, and suspended the defendant's driver's license for forty-five days. After the defendant
violated the terms of probation, a different judge entered a
guilty finding and sentenced the defendant to a 127-day house of
correction term, to be served at a substance abuse treatment
facility.
Over seven years later, with the record of the guilty plea
colloquy no longer available due to the passage of time, and
with plea counsel having retired and no longer possessing the
file or any memory of the case, the defendant moved to withdraw
his plea based on ineffective assistance of counsel and "newly
discovered evidence," (i.e., the Commonwealth's use of the
Draeger Alcotest 9510 breathalyzer device). After a
nonevidentiary hearing, a third judge denied the motion, and the
defendant timely appealed.
Discussion. 1. Ineffective assistance of counsel. In the
defendant's affidavit in support of his motion, he claimed that
plea counsel was ineffective for failing to investigate the
existence of a "massive pothole" on Interstate 91 northbound,
which "would have shown that [the defendant's] driving ability
was not diminished but a reasonable response to road defects."
Had plea counsel obtained the documentation of the pothole that
the defendant submitted with his motion, the defendant claims,
he would not have agreed to plead guilty. The judge implicitly
2 discredited the defendant's affidavit, finding that the
defendant received a very favorable disposition for a charge of
OUI, second offense, and that the answers the defendant would
have given at a typical plea colloquy were inconsistent with his
current claims that he did not wish to plead guilty and was
unsatisfied with counsel's representation. The judge also found
"no nexus" between the potholes listed in the defendant's
exhibits and where the accident occurred.1
Under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass.
1501 (2001), a judge may grant a motion for new trial "if it
appears that justice may not have been done." "Judges are to
apply the standard set forth in rule 30(b) rigorously and should
only grant such a motion if the defendant comes forward with a
credible reason which outweighs the risk of prejudice to the
Commonwealth." Commonwealth v. Wheeler, 52 Mass. App. Ct. 631,
635-636 (2001). "In a new trial motion asserting ineffective
assistance of counsel, whether justice may not have been done
equates with whether counsel was constitutionally ineffective."
Id. at 636. We discern no error of law or abuse of discretion
in the motion judge's determination that the defendant did not
meet his burden of showing that plea counsel's failure to pursue
1 The defendant's brief does not contest the motion judge's finding in this regard.
3 the putative pothole defense was conduct falling measurably
below that of an ordinary, fallible attorney, or that counsel's
conduct deprived the defendant of a substantial ground of
defense. See Commonwealth v. Simon, 481 Mass. 861, 866 (2019);
Commonwealth v. Testa, 102 Mass. App. Ct. 149, 155 (2023).
In addition to the factors noted by the motion judge, we
add that in the police report, although the trooper reported
that the defendant was at first agitated, yelled at the trooper,
demanded a breath test, and later became polite and cooperative,
at no time did the defendant mention swerving to avoid a
pothole. Likewise, at the plea hearing, the defendant
acknowledged under oath that the evidence was sufficient to
prove him guilty of OUI.2 "The defendant's sworn statements must
not be discarded on the later assertion that he had his fingers
crossed." Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 640
(2007).
2. Breathalyzer test. The defendant also argues that he
should have been permitted to withdraw his guilty plea based on
2 As the defendant has not attacked the adequacy of his plea colloquy, the motion judge properly presumed, as do we, that it included the regular warnings, waivers, and admissions. See Commonwealth v. Hoyle, 67 Mass. App. Ct. 10, 14-15 (2006). "Central to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment." Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 639 (2007), quoting Brady v. United States, 397 U.S. 742, 748 (1970).
4 the Commonwealth's use of the Draeger Alcotest 9510 breathalyzer
device to take his blood alcohol level at the State police
barracks. Where, as here, it is established that the
Commonwealth conducted a breathalyzer test using this device
during the relevant time period, the defendant is entitled to a
presumption that egregious government misconduct occurred. See
Commonwealth v. Hallinan, 491 Mass. 730, 749-750 (2023). To be
permitted to withdraw his guilty plea, however, the defendant
must also demonstrate, under the totality of the circumstances,
a reasonable probability that he would not have pleaded guilty
had he known the results of the test would have been
inadmissible. See id. at 750. Factors used to determine if
such a reasonable probability exists include 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."
Id., quoting Commonwealth v. Scott, 467 Mass. 336, 355 (2014).
We discern no error or abuse of discretion in the motion
judge's determination, based on the above factors, that the
defendant failed to make a credible showing that he would not
5 have pleaded guilty. The government's use of the Alcotest 9510
did not significantly detract from the otherwise strong evidence
against the defendant. He caused an accident and drove away
from the scene. A cold beer can and nip bottle were found in
the passenger seat of his car, and he exhibited "the classic
symptoms of intoxication," Commonwealth v. Stathopoulos, 401
Mass. 453, 454 (1988) -- odor of alcohol, bloodshot eyes,
slurred speech, agitated demeanor, and difficulty walking and
maintaining balance. We agree with the motion judge that the
breathalyzer test was not the "'crown jewel' -- the most
inculpatory piece of evidence against the defendant." Hallinan,
491 Mass. at 750. In addition, in terms of the defendant's
decision to plead guilty, the evidence from the Alcotest 9510
test, which showed that the defendant's blood alcohol content
was between 0.126% and 0.128%, was cumulative of the evidence
from the portable breath test that he demanded at the scene of
his arrest, which showed a level of 0.13%. Finally, given the
evidence against the defendant and the favorable disposition
that plea counsel obtained, it is unlikely that counsel would
have advised going to trial. Counsel, and the defendant, could
have reasonably determined that the benefits of the plea deal
6 outweighed the risk of a trial, even where the results of the
breathalyzer test would not be admitted.3
Order denying motion to withdraw guilty plea affirmed.
By the Court (Massing, Singh & Grant, JJ.4),
Assistant Clerk
Entered: May 28, 2024.
3 The defendant also casts his claim concerning the breathalyzer test as a claim of newly discovered evidence. As he was unable to show that the Commonwealth's use of the test had a prejudicial effect on his decision to plead guilty, he fares no better under the framework for assessing a motion to withdraw a guilty plea based on newly discovered evidence. See Scott, 467 Mass. at 361-362.
4 The panelists are listed in order of seniority.