Opinion
14-P-1548
01-12-2016
COMMONWEALTH v. LEONEL MEJIA.
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
The defendant appeals from a Superior Court order entered October 28, 2013, denying his second motion for a new trial. For the following reasons, we affirm.
In March, 1989, the defendant was indicted on charges of trafficking in cocaine and conspiracy to traffic in cocaine. In August, 1991, the defendant resolved those charges by pleading guilty to conspiracy to possess cocaine with intent to distribute. More than seven years later, in November, 1998, the defendant filed his first motion for a new trial (1998 motion) seeking to vacate his guilty plea, substantially on the ground that the judge had failed to give him immigration warnings as required by G. L. c. 279, § 29D. After the 1998 motion was filed, the court ordered that a transcript of the plea proceedings be produced. As the transcript revealed that the defendant, in fact, had received immigration warnings, the motion judge denied the 1998 motion. The defendant did not appeal that decision.
In May, 2013, the defendant filed his second motion for a new trial (2013 motion) seeking to withdraw his guilty plea on the ground that the factual basis presented by the prosecutor during the plea colloquy was insufficient to support a guilty finding, and, hence, the plea was not intelligent and voluntary. A judge of the Superior Court denied the 2013 motion on the ground that the defendant had waived the claim by failing to assert it in his original 1998 motion or an amendment thereto. The judge declined to exercise her discretion to address the claim on its merits.
The Commonwealth does not contend, and the record does not show that the defendant was given an explanation of the elements of the crimes charged by either the judge or defense counsel. See Commonwealth v. Sherman, 451 Mass. 332, 335 (2008); Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 639 (2007).
In this appeal, the defendant argues that he was unable to obtain a transcript of the plea hearing until after he first filed the 1988 motion, and, therefore, the judge hearing the 2013 motion should not have found that he waived the claim. This argument is without merit. The constitutional theory on which the defendant's claim is based was fully developed when he filed the 1998 motion, he was aware of the facts set forth during the plea colloquy at which he and his counsel at that time obviously were present, and the transcript of the plea hearing was produced before the 1998 motion was argued and decided. Thus, the ground asserted in the 2013 motion was available to be raised by original or amended motion in 1988, and there were no genuine impediments to doing so.
Even if the judge had reached the merits of the 2013 motion, the defendant still would not have been entitled to relief. A waived claim will be considered under the substantial risk of a miscarriage of justice standard, see Commonwealth v. Randolph, 438 Mass. 290, 297 (2002). That standard is not met here. As demonstrated by pages seven and eight of the plea transcript, the defendant admitted to recitations by the prosecutor that an individual named Wilfredo Rivera was selling cocaine from his apartment, and that surveillance had shown that the defendant was Rivera's "lookout," and thus was a joint venturer of Rivera. These recitations sufficed to establish the factual basis for the defendant's guilty plea.
Order entered October 28, 2013, denying motion for new trial affirmed.
By the Court (Cohen, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 12, 2016.