Opinion
15-P-241
04-01-2016
COMMONWEALTH v. MARCEL CARDOSO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Three years after the disposition of his criminal case in the Superior Court, the defendant moved to vacate his guilty pleas after learning of the misconduct of Annie Dookhan, the chemist who tested the suspected cocaine in his case. A Superior Court judge denied the motion, concluding that in light of the benefits he received under the plea agreement, the defendant had failed to establish a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct. The defendant challenges that decision on appeal. We affirm.
Background. On April 30, 2009, an off-duty police officer observed the defendant in the driver's seat of a parked automobile with what appeared to be cocaine on his lap. The officer observed the defendant look down and reach toward his sock. The defendant then entered a café, remained inside for two minutes, and returned to the automobile. He entered the passenger's side of the automobile and the passenger moved to the driver's side. The officer relayed his observations to other officers and the automobile was subsequently stopped. Contraband was found on the driver's person. The driver and the defendant were arrested. At the police station, officers seized what appeared to be cocaine from the defendant's underwear. The suspected cocaine was packaged in a manner consistent with distribution. The certificates of drug analysis show that Dookhan was the testing chemist at the William A. Hinton State Laboratory Institute and that the seized substance tested positive for cocaine.
While on release from the resulting drug charges, the defendant was involved in a brawl involving weapons on July 31, 2009. Police responded and detained the defendant as he attempted to flee. A patfrisk of the defendant revealed a magazine of ammunition and two loaded firearms on his person.
On September 9, 2010, the defendant pleaded guilty in Superior Court to five charges, including two counts of carrying a firearm without a license, two counts of illegal possession of a loaded firearm, and a reduced charge of possession of cocaine with intent to distribute. In exchange for the defendant's guilty pleas, the Commonwealth dismissed charges of conspiracy to violate the drug laws, a school zone violation, and defacing a firearm. Based on a joint recommendation, the plea judge imposed a two-year house of correction sentence on each charge of unlawful carrying of a firearm to be served concurrently, followed by three years' probation on the charges of carrying a loaded firearm and possession of cocaine with intent to distribute, each to be served from and after the period of incarceration, but concurrent with each other.
Discussion. We review the defendant's motion to withdraw his guilty pleas as a motion for new trial. Commonwealth v. Furr, 454 Mass. 101, 106 (2009). We evaluate the decision "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
To prevail on his motion to withdraw his guilty pleas, the defendant was required to establish that (1) there was egregious government misconduct in his case, and (2) the egregious misconduct materially influenced his decision to plead guilty. Commonwealth v. Scott, 467 Mass. 336, 347-357 (2014). As the Commonwealth conceded, Dookhan's participation in the analysis of the seized substance was sufficient to establish a conclusive presumption of egregious government misconduct. Id. at 354. However, after considering the totality of the circumstances, the motion judge concluded that the defendant failed to satisfy the second prong of Scott. That is, the defendant failed to "demonstrate [that there was] a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct." Id. at 355. We agree.
In Scott, the Supreme Judicial Court recognized that "a defendant's decision to tender a guilty plea is a unique, individualized decision, and the relevant factors and their relative weight will differ from one case to the next." Id. at 356. Among the factors a motion judge should consider is the benefit the defendant received from the plea agreement, including the sentence reduction. Id. at 355-357.
Here, had the defendant proceeded to trial, he faced a mandatory minimum prison sentence of thirty-six months on the drug charges and a minimum sentence of thirty months, eighteen of which were mandatory, on the firearm charges. Pursuant to the plea agreement, two of the three drug charges were dismissed and the third was reduced, so no mandatory minimum sentence applied. Indeed, the defendant avoided incarceration altogether on the drug charges. On the charge of possession of cocaine with intent to distribute, the only charge requiring Dookhan's testimony, the defendant was sentenced only to probation. We agree with the motion judge's assessment that the "Commonwealth made substantial concessions in exchange for the defendant's plea of guilty."
In these circumstances, where (1) the defendant risked a far greater period of incarceration if he proceeded to trial, (2) the evidence against him on the firearm offenses was strong, (3) Dookhan's testimony was not necessary to prove the firearm offenses, and (4) the Commonwealth agreed to a term of probation on the reduced drug charge, the judge did not abuse her discretion when she found that no reasonable defendant would have chosen a trial.
Order denying motion to vacate guilty pleas affirmed.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 1, 2016.