Opinion
13-P-1694
02-25-2015
COMMONWEALTH v. ASHLEY L. MARTIN.
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
On September 9, 2010, the defendant, Ashley L. Martin, pleaded guilty in the Berkshire Superior Court to thirty drug offenses set forth in four sets of indictments. After a hearing, all six of the trafficking charges were reduced to the lesser offense of possession of cocaine with intent to distribute, and the defendant pleaded guilty to the reduced charges; she also pleaded guilty to all remaining charges except to a charge of possession to distribute a class D substance, the associated school zone violation, and the firearm violation contained in BECR2009-112 which were nolle prossed. The judge imposed an aggregate sentence of five to eight years in State prison on all of the possession with intent to distribute charges and on all but one of the conspiracy charges. The judge also sentenced the defendant to five years of probation to follow the prison term on the remaining charge of conspiracy to violate the drug law.
The dockets pertaining to the indictments are as follows: BECR2009-88 (arising from the arrest of her car passenger at a Pittsfield Burger King) involves four charges against the defendant: one charge of trafficking in cocaine, one charge of possession with intent to distribute a class D substance, and two charges of school zone violations; BECR2009-112 (arising from the execution of three search warrants at her home and two other locations) involves twelve offenses: three charges of trafficking in cocaine, one charge of possession with intent to distribute a class A substance (heroin), one charge of possession with intent to distribute a class D substance (marijuana), five charges of school zone violations, one charge of conspiracy to violate the drug law, one charge of possession of a firearm without a firearm identification card; BECR2009-216 (arising from five controlled buys) pertains to fourteen offenses: three charges of cocaine distribution, two charges of trafficking in cocaine, four school zone violations, five charges of conspiracy to violate the drug laws; BECR2010-90 (arising from a drug transaction by the defendant's automobile passenger) involves three indictments: one charge of cocaine distribution, one charge of a school zone violation, and one charge of conspiracy to violate the drug law.
The defendant was sentenced to one year in the house of correction on the marijuana conviction and, on all the school zone convictions, either two years or two and one-half years to five years in the house of correction to be served either concurrently with or from and after the sentence on the marijuana conviction. All of these sentences were concurrent with the State prison sentence.
Three years later, in 2013, the defendant filed motions to withdraw all her guilty pleas in all four cases. The defendant argued that (1) there was no factual basis to establish certain charges; (2) her guilty pleas had not been made voluntarily or intelligently because (a) she had not been adequately informed of the elements of each offense and (b) the judge had not informed her of the maximum sentence that could be imposed if her term of straight probation was revoked; and (3) her plea counsel was ineffective in failing to file a motion to dismiss duplicative conspiracy counts and by failing to file a motion to dismiss or a motion to suppress evidence seized during the police encounter at Burger King. The judge who presided at the plea hearing denied the motions without a hearing in a written memorandum of decision. The defendant has appealed.
Background. The incidents arose from the investigation of Joseph Davis, the defendant's then boy friend, by the Berkshire County drug task force. As a result of that investigation, four sets of indictments were brought involving twelve substantive drug offenses accompanied by eleven school zone and seven conspiracy counts. The specific drug offenses consisted of six cocaine trafficking charges that were reduced at the outset of the plea hearing to possession of cocaine with the intent to distribute, four cocaine distribution counts, and one count each of possession of heroin with the intent to distribute and possession of marijuana with the intent to distribute.
The indictments group the charges according to the following four sets of facts: the discovery of contraband in a vehicle driven by the defendant in a Burger King parking lot; five controlled buys; the execution of a search warrant at the defendant's Lincoln Street residence that she shared with Davis and at two other properties, including the Weller Avenue property that Davis used to store drugs which was occupied by Genese Latini, Davis's "one-time girlfriend[, who] also had his children"; and, lastly, a sixth controlled buy conducted with Davis's half-brother, Valenti Ellerbee, while he was in the defendant's automobile with her.
Discussion. "A defendant's motion for a new trial that seeks to withdraw a guilty plea is addressed to the plea judge's sound discretion, and we review the judge's decision for abuse of discretion or clear error of law." Commonwealth v. Hart, 467 Hart 322, 324 (2014) (Hart). Here, the judge ruled that the record showed that the defendant was informed of the elements of the offenses and that the facts recited by the prosecutor established each of the charges.
The judge made no findings nor did he rule on additional claims of ineffective assistance of counsel.
Factual basis for the guilty pleas to the charges of distribution or intent to distribute. It has long been established, and recently reaffirmed, that a defendant's admission of guilt is not sufficient to support a conviction; it must be accompanied by a "strong factual basis" of guilt. Commonwealth v. DelVerde, 398 Mass. 288, 297 (1986). Hart, supra at 325-326. This requirement imposes on a judge accepting a guilty plea "a separate and independent duty . . . to determine that a sufficient factual basis exists for the charge[s]" and is distinct from an assessment whether the defendant's plea was voluntary and intelligent. Hart, supra at 325-326.
Here, the defendant pleaded guilty to drug offenses that were charged as distribution or possession with the intent to distribute. With respect to both charges, guilt was premised on a theory of joint venture or, alternatively, constructive possession. The former requires proof that "the defendant knowingly participated in the commission of the crime charged, and that the defendant had or shared the required criminal intent," Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009), and the latter requires proof of "knowledge coupled with the ability and intention to exercise dominion and control". Commonwealth v. Boria, 440 Mass. 416, 418 (2003) (emphasis added) (Boria). Under either theory, the defendant's "mere presence" is insufficient to establish liability. Id. at 421 (constructive possession). Commonwealth v. Deane, 458 Mass. 43, 50 (2010) (joint venture). Even "[l]iving in a place where drugs are in plain view and being sold," is insufficient to establish the requisite intent. Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 411 (2013) quoting from Boria, supra at 418. Rather, an additional link or "plus factor" is required to prove the intention to exercise control or the intention to participate in the crime. See Commonwealth v. Sepheus, 468 Mass. 160, 167 (2014).
In this case, there can be no doubt that "if the defendant had eyes [and ears]" she must have been aware of the drug dealing, the sales preparations, and the presence of quantities of cocaine and heroin because of Davis's drug dealing in the residence she shared with him on Lincoln Street.
See Commonwealth v. Brown, 34 Mass. App. Ct. 222, 225-226 (1993) (Brown). The Lincoln Street residence was the defendant's home; therefore she had a legitimate reason to be present. We must look elsewhere for the requisite plus factor or additional link to each of the drug sales underlying the charges. Commonwealth v. Pimental, 73 Mass. App. Ct. 777, 785-786 (2009 (Pimental). Contrast, e.g., Commonwealth v. Gonzalez, 452 Mass. 142, 148-149 (2008) (presence in stash house can push inference of "awareness" to "involvement" in drug trade). The defendant challenges four of the controlled buys and the charges resulting from the search warrants on factual insufficiency.
1. Controlled buys. The defendant challenges the guilty pleas that arise from four of the five controlled buys, arguing that there were insufficient facts to support the guilty pleas. The four controlled buys that the defendant challenges occurred on February 24, 2009, March 12, 2009, March 31, 2009, and April 7, 2009. The facts as recited by the assistant district attorney (ADA) show that, in the buy that occurred on February 24, 2009, the defendant told Germane Robinson, the confidential informant, that she had kicked Davis out of the house and that he could be found at the property on Weller Avenue with cocaine. However, without more, those facts did not establish an inculpatory link between the defendant and the subsequent cocaine sale by Davis to Robinson at Weller Avenue, particularly where that residence was occupied by Davis's purported former girl friend, with whom it can be reasonably inferred the defendant was not friendly.
The defendant does not argue that the facts are insufficient to support the controlled buy that occurred on February 26, 2009. However, as noted below, we vacate that guilty plea on the basis that is was not knowing and voluntary. See note 7, infra.
Nor did the ADA's recitation of the facts establish a plus factor or link with respect to the transaction on March 12, 2009, between Davis and Robinson in the bedroom at 132 Lincoln Street. The factual recitation shows that the defendant witnessed the transaction and nothing more.
The ADA's factual recitation regarding the March 31, 2009, transaction, also depicts the defendant witnessing Davis and Brown negotiate and complete a sale of crack cocaine to Robinson.
Finally, in the factual recitation regarding the April 7, 2009, controlled buy, the facts show that the defendant again witnessed Robinson negotiate a purchase of crack cocaine from Pittman, this time in the kitchen of Lincoln Street, but that the sale was culminated with Pittman's girl friend, outside of the Lincoln Avenue residence and the defendant's presence, in a nearby automobile. None of these factual recitations was sufficient to support a guilty plea, and the motion to withdraw these guilty pleas, as well as the concomitant school zone violations, must be allowed.
The Commonwealth agreed at oral argument that facts did not establish the defendant's requisite connection to the April 7, 2009, sale.
2. Search warrants. The indictment that stems from the search warrants includes three counts of possession of cocaine with the intent to distribute. The defendant challenges the searches on the basis of insufficient facts. With respect to the search at Weller Avenue that resulted in the seizure of over 100 grams of cocaine, no facts set forth a connection between the defendant and that residence, other than Davis's regular presence in that dwelling and his use of it as a stash house. The second distribution count can be attributed to the cocaine found on the floor in the defendant's Lincoln Street bedroom, but the ADA's recitation did not contain the necessary facts to prove a third quantity of cocaine.
The search warrant return was included in the record appendix, but that was not before the plea judge. It shows that a second bag of cocaine was found in the top left dresser drawer in the Lincoln Street bedroom, but the prosecutor made no reference to this evidence during the hearing. See note 5, supra. See also Hart, 467 Mass. at 326-327 & n.9 (because prosecutor was sole source of factual information presented at plea hearing, other evidence could not be considered on appeal to establish factual basis).
In support of the denial of the motions, the Commonwealth urges us to include the ADA's remarks from a preamble provided at the outset of the plea to establish proof of the defendant's intent, without which proof is lacking for those offenses related to Weller Avenue and the transactions she merely witnessed. The ADA provided a thumbnail sketch of all the charges that included the statement that Davis would sell drugs "through individuals working in his group" including the defendant.
According to the Commonwealth, this summary evinces the defendant's intent to participate in the drug transactions because she admitted that all of the facts recited by the prosecutor were true, including this statement. The summary or preamble, however, was not provided in reference to any specific charge and, in our view, can no more fill a factual gap than an opening statement can supply missing evidence of guilt. In any event, it was entirely devoid of the details required to sustain a criminal charge: it fails to indicate specifically what the defendant did or when she did it. See generally Hart, 467 Mass. at 324-328.
In short, the necessary facts to prove the charges related to the cocaine found at Weller Avenue during the search on April 16, and to prove the controlled buys on February 24, March 12, March 31, and April 7, 2009, are absent.
The factual bases for the charges related to the search of the defendant's residence on April 16, 2009, on Lincoln Street are also inadequate. Although the ADA repeated that the cocaine was found in the bedroom shared by Davis and the defendant, no facts underpinned this statement. There was no indication that any of the defendant's personal belongings were in the bedroom or near the contraband, nor were any drugs, money, or paraphernalia found on the defendant's person, and she made no incriminating statements. Even more troubling is the lack of any particular link between the defendant and the heroin that the prosecutor only identified as having been found during the search. Brown, 34 Mass. App. Ct. at 226. Pimental, 73 Mass. App. Ct. at 786.
As to the seven conspiracy charges, we agree with the defendant that the facts presented at the hearing suggest a single agreement in support of the conspiracy to violate the drug law. Merely because there may have been many illegal objectives and separate occurrences required to carry out that objective, they were all embraced under the overriding alleged agreement with Davis to sell drugs. See, e.g., Commonwealth v. Cerveny, 387 Mass. 280, 288-289 (1982); Commonwealth v. Winter, 9 Mass. App. Ct. 512, 525-526 (1980).
A guilty plea must be intelligent and voluntary. In addition to the requirement that a guilty plea must have a factual basis, it must also be made voluntarily and intelligently. See, e.g., Huot v. Commonwealth, 363 Mass. 91, 99 (1973). With respect to the latter factor, "a defendant's plea is intelligent when made with understanding of the nature of the charges (understanding of the law in relation to the facts) and the consequences of his plea (the legal consequences and constitutional rights he forgoes by pleading guilty rather than proceeding to trial)." Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 638 (2007). See, e.g., Commonwealth v. Furr, 454 Mass. 101, 106-107 (2009).
Here, because the factual bases for many of the charges were absent, it is difficult to conclude that the defendant understood the nature of the charges. Moreover, the lack of understanding may have been exacerbated by the judge's failure to inform the defendant of the mandatory minimum sentence (one year) and the maximum sentence (ten years), as is required, when he imposed a sentence of straight probation on one of the charges of conspiracy to violate the drug laws. See Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 581-582 (2001); Commonwealth v. Murphy, 73 Mass. App. Ct. 57, 64-68 (2008).
Nor in this case can we rely on any of the three ways that typically show a defendant's understanding of the nature of the charges. Hart, 467 Mass. at 325. Commonwealth v. Correa, 43 Mass. App. Ct. 714, 7196 (1997). Where the judge did not explain the elements and the factual basis of many of the charges, only counsel's explanation could establish the intelligence requirement for a guilty plea. The judge's explanation, even if we were to assume it was adequate, was muddled by the prosecutor's remarks that he intended to enter a nolle prosequi on a nonexistent conspiracy charge, and was silent as to the firearm charge, leaving open the possibility that it was still pending, although the docket shows the firearm charge was nol prossed. The prosecutor also said that Weller Avenue was within 1,000 feet of a school zone when he relayed the facts of the February 24, 2009, distribution charge, implying that there was an accompanying school zone count when there was not.
Ineffective assistance claim. To the extent that plea counsel's decision to forego motions to suppress or motions to dismiss may not have been manifestly unreasonable given the stance of the prosecution in requiring the waiver of those motions as part of the plea agreement, there is the possibility that at least a motion to dismiss the multiple conspiracy charges would have been successful.
Conclusion. In the preceding sections we have identified several errors that occurred in taking the defendant's guilty pleas. It is clear that those guilty pleas for which there is an insufficient factual basis must be vacated. Hart, supra at 324-328. With respect to the other errors, we have not considered whether any single error is sufficient to vacate a particular guilty plea, but we conclude that the combination of errors requires that the order denying the defendant's motions to withdraw guilty pleas or in the alternative for a new trial be reversed as to every count. See Commonwealth v. Cancel, 394 Mass. 567, 576 (1985); Commonwealth v. Dwyer, 448 Mass. 122, 138 (2006). Because the record is devoid of many of the necessary facts to support many of the guilty pleas, and because the stated facts and related charges were muddled in the prosecutor's presentation, in combination with the unfulfilled promise of the judge to pause after each of the many indictments to inquire into the defendant's understanding, as well as the failure of the judge to inform the defendant of the maximum sentence on the sentence of straight probation, we are convinced that Commonwealth has not met its burden to demonstrate that the pleas were validly obtained. Boykin v. Alabama, 395 U.S. 238, 242-244 (1969). See Commonwealth v. Cartagena, 466 Mass. 1021, 1022 (2013) (valid plea must be voluntary and defendant must understand nature of charges; it is Commonwealth's burden to demonstrate that valid plea was obtained).
Even the facts pertaining to the three sets of charges that clearly demonstrate the defendant's culpability are not without weakness. Specifically, the single instance in which the defendant personally handled the contraband only occurred when Davis was on crutches and the defendant carried a black trash bag into Lincoln Street. In her affidavit filed in support of her motion to vacate her pleas, the defendant proffers an exculpatory explanation for the Burger King incident and a lack of anticipatory knowledge of the drug transaction with Ellerbee. Any decision to challenge these offenses, any other charge, or even to offer an alternative disposition was surely undercut by the sheer number of offenses and the realistic assessment that a favorable disposition after trial would be unlikely. There are certainly many inherent and legitimate stresses in entering a guilty plea, but having to factor multiple unsupported offenses ought not to be one of them. See and contrast Commonwealth v. Berrios, 447 Mass. 701, 708-710 (2006).
The orders denying the motions to withdraw the guilty pleas, or in the alternative for a new trial, are reversed. New orders shall enter allowing the motions.
So ordered.
By the Court (Cypher, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: February 25, 2015.