Opinion
13-P-742
11-12-2014
COMMONWEALTH v. JOSE CRUZ-GUZMAN.
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
In 2013 the defendant pleaded guilty to trafficking in cocaine (31.46 grams), in violation of G. L. c. 94C, § 32E (b)(2), and possession of heroin (5.38 grams), in violation of G. L. c. 94C, § 34. He appeals from his sentence for trafficking in cocaine. As the legal claims he now raises were waived when he pleaded guilty, we affirm.
1. Facts. The defendant was indicted on May 15, 2009, pursuant to G. L. c. 94C, § 32E (b)(2), which, at the time, made it a crime to possess twenty-eight grams or more of cocaine, but less than 100 grams. That version of the statute had a mandatory minimum sentence of five years. Just prior to pleading guilty, the defendant moved to amend the statutory citation under which he had been charged, proposing to change it from G. L. c. 94C, § 32E (b)(2), to G. L. c. 94C, § 32E (b)(1). The defendant argued that recent changes brought about by St. 2012, c. 192 (the 2012 Crime Bill) had altered the statutory mandatory minimum sentences and weights for drug trafficking and made the new laws retroactive to crimes committed prior to the 2012 Crime Bill's effective date of August 2, 2012, where there had been no guilty plea or conviction by that date. See generally Commonwealth v. Galvin, 466 Mass. 286 (2013) (discussing retroactivity of reductions to mandatory minimum sentences by Crime Bill).
After it was revised by the 2012 Crime Bill, G. L. c. 94C, § 32E (b)(2), applied to possession of thirty-six grams or more, but less than 100 grams. It had a mandatory minimum sentence of three and one-half years, and a maximum sentence of twenty years. Based on his possession of 31.46 grams of cocaine, the defendant sought to have his sentence imposed under the revised weight limits set forth in G. L. c. 94C, § 32E (b)(1), which applied to possession of eighteen grams or more, but less than thirty-six grams. That revised statutory citation carries a mandatory minimum sentence of two years and a maximum sentence of fifteen years.
On January 28, 2013, a Superior Court judge denied the defendant's motion to amend the statutory citation under which he was charged, but nevertheless determined that the new mandatory minimum sentence (but not the new weight range) established by the 2012 Crime Bill should apply to the defendant's sentence. The judge informed the defendant that he would receive a three and one-half year sentence if he pleaded guilty. The defendant thereafter pleaded guilty to G. L. c. 94C, § 32E (b)(2), and received a sentence of three and one-half years, the revised mandatory minimum under that statutory citation. This sentence was more than the two-year minimum he could have received had he been charged under the revised version of G. L. c. 94C, § 32E (b)(1), but well below the maximum sentence for the revised version of G. L. c. 94C, § 32E (b)(2), which was twenty years, or the maximum for the revised version of G. L. c. 94C, § 32E (b)(1), which was fifteen years. The defendant appeals from the sentence, claiming that the judge committed legal error in not applying the revised weight ranges retroactively in his case.
2. Discussion. The defendant's claims cannot survive on appeal because "[a] defendant's guilty plea, made knowingly, voluntarily and with the benefit of competent counsel, waives all nonjurisdictional defects in the proceedings prior to the entry of the guilty plea." Commonwealth v. Berrios, 84 Mass. App. Ct. 521, 524 (2013), quoting from Commonwealth v. Fanelli, 412 Mass. 497, 500 (1992). See G. L. c. 277, § 47A (noting that jurisdictional defects may be raised at any time). During the defendant's plea colloquy, the Superior Court judge found that the defendant was properly informed of the potential results of his plea and entered his guilty plea voluntarily. The defendant further acknowledged that he had adequate access to the advice of his counsel. The sentence he received was well within the recommended guidelines for both revised G. L. c. 94C, § 32E (b)(2), and revised G. L. c. 94C, § 32E (b)(1), and exactly what the judge told the defendant he would receive before he entered his plea. Having reviewed the plea colloquy ourselves, we conclude that "[n]othing in the plea colloquy . . . detracts from the conclusion that the defendant's guilty plea was voluntary and the product of deliberate and rational decision making." Commonwealth v. Furr, 454 Mass. 101, 112-113 (2009) (citation omitted). When he voluntarily decided to plead guilty, "the defendant foreclosed his right to request a decision by this court on legal questions which he had raised prior to entering the guilty plea[]." Commonwealth v. Zion, 359 Mass. 559, 563 (1971). The question of the retroactivity (or lack thereof) of the weight limits for drug possession is not a jurisdictional defect that should be excepted from the standard rule of waiver, particularly when the judge properly gave the defendant the benefit of the revised mandatory minimum of G. L. c. 94C, § 32E (b)(2), and imposed a sentence well within the permissible sentencing ranges for both G. L. c. 94C, § 32E (b)(2), and G. L. c. 94C, § 32E (b)(1); "[j]urisdictional defects are those that go to the 'very power of the State to bring the defendant into court.'" Berrios, supra at 525, quoting from Commonwealth v. Clark, 379 Mass. 623, 626 (1980). The defendant has not challenged the Superior Court judge's ability to accept his guilty plea and has not claimed that his sentence was illegal. Therefore, we will not disturb the sentence that was imposed.
Judgment affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.),
Clerk Entered: November 12, 2014.