Opinion
20-P-1107
04-08-2021
COMMONWEALTH v. Jose GOMEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Indicted for trafficking in more than 200 grams of cocaine, the defendant, Jose Gomez, pleaded guilty to trafficking in more than thirty-six but less than one hundred grams. See G. L. c. 94C, § 32E (b ) (2). Thereafter he filed a motion to vacate his conviction, arguing that the judge erred by accepting his plea without a sufficient factual basis. The same judge who had accepted the guilty plea denied the motion, and the defendant appeals. We affirm.
A judge cannot accept a guilty plea without finding that an adequate factual basis for the charge exists. See Mass. R. Crim. P. 12 (c) (5), as amended, 470 Mass. 1501 (2015). The judge is not required to find that the defendant is guilty of the crime. "Rather, a plea judge ‘need determine only whether the evidence which he had heard, plus any information he has obtained in the plea hearing, is sufficient, when considered with reasonable inferences which may be drawn therefrom, to support the charge to which the defendant is offering a plea of guilty.’ " Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015), quoting Commonwealth v. Jenner, 24 Mass. App. Ct. 763, 773 (1987).
According to the prosecutor's recitation of the facts, the codefendant, Melendez, while under police surveillance, picked up the defendant and drove with him to a garage in Taunton. There, Melendez took a large box, put it in the trunk of the car, and drove to New Bedford, where the police officer who had been following the men pulled Melendez over for speeding. The defendant and Melendez gave false and inconsistent statements "about where they were and what they were doing." After searching the car, the officer found two heat sealed packages, one containing 1,000 grams of cocaine and the other containing 911 grams. The recitation ended as follows:
THE PROSECUTOR : "Essentially, the Commonwealth submits that Mr. Gomez aided and assisted Mr. Melendez in trafficking cocaine between 36 and 100 grams on December 1st of 2016. Thank you, Your Honor."
THE JUDGE : "Okay. Mr. Gomez, you understand by pleading guilty you're admitting that those facts are true?"
THE DEFENDANT : "Yes."
THE JUDGE : "Okay. Are those facts true?"
THE DEFENDANT : "Yes."
The judge reasonably concluded that the facts recited by the prosecutor, together with the defendant's admission, were sufficient to support the charge that the defendant trafficked in cocaine as a joint venturer with Melendez. The defendant's reliance on decisions that reversed convictions based on insufficient evidence of constructive possession is misplaced. "[T]he factual basis for a guilty plea need not satisfy the standard of review for the denial of a motion for a required finding of not guilty set forth in Commonwealth v. Latimore, 378 Mass. 671, 677 (1979)." Armstrong, 88 Mass. App. Ct. at 758.
To proceed on a joint venture theory, the Commonwealth must show "that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense." Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). In this regard, the defendant's admission that he "aided and assisted" Melendez is highly probative. These verbs do not express a mere legal conclusion as in Willett v. Barnes, 842 P.2d 860, 862 (Utah 1992), or State v. Powell, 29 Wash. App. 163, 167 (1981). See Commonwealth v. Hart, 467 Mass. 322, 328 (2014) (term "resisting arrest" not "self-explanatory," but requires "an intensely factual, nuanced inquiry that must consider the nature of the defendant's conduct or actions and the sequence of those actions in relation to corresponding action by the police officers involved"). Rather, the language the prosecutor used to describe the facts is regarded as "simple and appropriate language" for describing joint venture liability to a jury. Zanetti, 454 Mass. at 468. See id. at 470 (Appendix) (in model joint venture jury instruction, explaining with respect to knowing participation in commission of offense, "It may take the form of personally committing the acts that constitute the crime, or of aiding or assisting another in those acts").
While the defendant's motion to vacate his plea filed in the Superior Court was based on the lack of a factual basis, the defendant's appellate brief conflates the factual basis requirement with the question whether the plea was intelligent, that is, whether he understood the elements of the crime charged. See Hart, 467 Mass. at 326 ("whether a defendant's plea was voluntary and intelligent is separate and distinct from the question whether the record of the plea establishes a factual basis for the crime charged").
The plea was adequate in this regard as well. "The intelligence requirement may be met in one of three ways: the judge may explain the elements of the crime to the defendant; the defendant's counsel may explain the elements of the crime to the defendant; or the defendant may ‘admit[ ] the facts constituting the crime ... even if he is not aware that the facts he admit[s] are the elements of the crime.’ " Hart, 467 Mass. at 325, quoting Commonwealth v. Colantoni, 396 Mass. 672, 679-680 (1986). Here, plea counsel's signature on the defendant's waiver of rights form established that counsel explained the elements to the defendant, a fact that the defendant acknowledged in open court. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 634 (2007) ("a defendant's sworn statements during a guilty plea colloquy are statements of consequence and not mere conveniences later to be discarded"). In addition, the defendant admitted to the facts in the plea colloquy described above, which established the elements of trafficking in more than thirty-six grams of cocaine as a joint venturer.
As the factual basis for the plea was adequate, the judge acted "well within his discretion in denying the defendant's motion without a hearing." See Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992).
Order denying motion to vacate conviction affirmed.