Opinion
10-P-1920
11-21-2011
COMMONWEALTH v. LARON BEY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant pleaded guilty to possession of cocaine, with intent to distribute. G. L. c. 94C, § 32A. More than two years later -- after the defendant was twice found in violation of a probation condition and incarcerated on a remaining suspended sentence -- the defendant filed a motion to withdraw his guilty plea. After two nonevidentiary hearings, a judge (motion judge) denied the motion. On appeal, the defendant challenges that denial, contending that (1) the plea was not voluntary and intelligent because the defendant did not understand what offense he was pleading to; (2) the guilty plea lacked an adequate factual basis to establish the offense elements of possession of cocaine with intent to distribute; and (3) the motion judge erred by not conducting an evidentiary hearing on the defendant's claim that he had ineffective assistance of counsel at the time of the plea. We affirm.
In reviewing a motion to withdraw a guilty plea under Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001), 'a rigorous standard must be applied and a judge may only allow such a motion 'if it appears that justice may not have been done." Commonwealth v. Berrios, 447 Mass. 701, 708 (2006), quoting from Mass.R.Crim.P. 30(b). A judge's decision denying the plea withdrawal will only be reversed on appeal if the decision is an abuse of discretion that produces a manifestly unjust result. Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997).
Though not outcome determinative to our analysis, we note that the defendant's plea deal was quite favorable. The defendant was sentenced to six months in jail with the balance of a two and one-half year jail sentence suspended, plus probation. That sentence was to be served concurrently with a sentence that the defendant was already serving. Moreover, in exchange for the plea, a probation violation on a different docket was excused.
One of the defendant's principal arguments is that his plea was not knowingly and intelligently entered because, at the time of his plea, the defendant did not realize that he was pleading guilty to possession with intent to distribute the cocaine found within his apartment during the execution of a search warrant. Instead, the defendant claims that he believed he was pleading guilty to distribution of cocaine based on the undercover transactions which were the basis of probable cause for the search warrant. Given the plea colloquy, this contention makes little sense.
First, the prosecutor expressly referred to the cocaine seized under the warrant as the basis for plea, not the undercover sales. Then, during the colloquy the judge while informing the defendant of the rights he was giving up by entering a guilty plea, expressly referred to the prosecutor's outline of the evidence, which, as noted, referenced the cocaine seized under the warrant. Second, the defendant signed a written tender of plea and waiver of rights form which stated that the defendant was pleading guilty to possession of a class B substance with intent to distribute. Third, based on the summary, the judge stated on the record that he was finding the defendant guilty of 'the possession with intent to distribute Class B substance.' From all of the foregoing, the defendant's claim that he did not know that he was pleading to possession of cocaine seized under a warrant lacks merit.
In light of the plea colloquy, similarly unavailing is the defendant's contention that there was an inadequate factual basis for the plea. The prosecutor's recital of the evidence that would have been presented had the case gone to trial provided a sufficient factual predicate for the plea offense. Specifically, the prosecutor's description of the execution of the search warrant at the defendant's apartment included the following: (1) during the warrant execution, the defendant was present with a codefendant; (2) the defendant was shown the search warrant; (3) the police then seized four individually wrapped pieces of crack cocaine, cut-off sandwich bags, a cellular telephone, and mail belonging to the defendant and the codefendant.
The defendant's contention that he did not understand the offense elements and his lawyer provided ineffective assistance in not explaining the offense element is without merit. The colloquy record includes the defendant's acknowledgment that his attorney had explained to him the elements of the crime. The judge inquired of the defendant, 'You're satisfied he's explained to you all the elements of this offense which the government is required to prove beyond a reasonable doubt?' The defendant answered, 'Yes, I am.' The defendant's plea counsel also signed the tender of plea form confirming that counsel had explained the nature and elements of the offense to which he was pleading. See generally Commonwealth v. Correa, 43 Mass. App. Ct. 714, 717 (1997).
Lastly, the defendant asserts that the motion judge erred by not holding an evidentiary hearing with respect to the defendant's ineffective assistance of counsel claim. Other than the defendant's own self-serving affidavit, there was nothing to suggest that the defendant had ineffective assistance of counsel. No affidavit was filed by plea counsel. It was well within the motion judge's discretion to conclude that there was no substantial issue which warranted an evidentiary hearing. See Commonwealth v. DeVincent, 421 Mass. 64, 67 (1995).
Order denying motion to withdraw guilty plea affirmed.
By the Court (Berry, Meade & Milkey, JJ.),