Opinion
15-P-1349
03-20-2017
COMMONWEALTH v. Robert M. PINA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In January, 2007, the defendant pleaded guilty to 2003 indictments charging trafficking in cocaine over 200 grams, G. L. c. 94C, § 32E(b ), assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A, refusing to stop for a police officer, G. L. c. 90, § 25, and possession with intent to distribute methamphetamine; and 2005 indictments charging trafficking in cocaine over 200 grams, G. L. c. 94C, § 32E(b ), and a school zone violation, G. L. c. 94C, § 32J. The defendant received an aggregate sentence on the 2003 offenses of fifteen years to fifteen years and one day in State prison. An identical and concurrent sentence was imposed on the 2005 trafficking charge, together with a two-year consecutive sentence on the school zone count. As a result of testing problems at the William A. Hinton Laboratory (Hinton lab) with Annie Dookhan, the defendant filed motions to withdraw his guilty pleas in both cases. He asserts that Dookhan's role as the confirmatory chemist in the 2005 case infected his decision to plead guilty in both cases. After a hearing before a special magistrate appointed to preside over criminal proceedings in connection with cases relating to the Hinton lab, the magistrate issued a proposed ruling and order denying both motions. There was no objection to the proposed orders. See Commonwealth v. Charles , 466 Mass. 63, 76 n.15 (2013). The defendant appeals from the denial of his motions. We affirm.
We note the defendant has not included copies of the indictments in the record appendix and therefore, this information is culled from the docket and lower court decision.
At the time of the defendant's trafficking offenses, the mandatory minimum sentence under G. L. c. 94C, § 32E(b )(4), was fifteen years.
Background . The essentially undisputed evidence at the hearing showed that during a drug investigation conducted in 2003, police officers surveilling the defendant observed him drive to Taunton and meet with a known drug trafficker. He went into the meeting empty handed and returned to his vehicle carrying a black plastic carrying case. The defendant then drove to Wareham, where the police subsequently surrounded his vehicle. The defendant backed up his vehicle, slammed into a police car, and drove off. He was apprehended after a short police chase. Police seized the black plastic carrying case from inside the defendant's car; it contained 2,358 grams of cocaine. A further search of the defendant's vehicle uncovered a full bag of methamphetamines, and a patfrisk of the defendant's person uncovered over $10,000. The drugs were analyzed at a New York laboratory used by the Drug Enforcement Administration.
A copy of the transcript from the plea hearing was admitted in evidence at the hearing on the defendant's motions.
With respect to the 2005 case, police were surveilling the defendant's home when they saw a black Cadillac Escalade pull into the parking lot. The defendant arrived shortly thereafter. He walked into his apartment joined by the occupant of the Escalade, later identified as Michael Reyes. The defendant carried a white plastic bag with red and black lettering. When Reyes exited from the defendant's apartment, he appeared to be carrying the same white plastic bag with red and black lettering.
The occupant's last name also is spelled "Rayes" in the materials before us.
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Reyes got into the Escalade and drove away. Police stopped the car, and when they attempted to seek his consent to search the car, Reyes sped away. Police chased behind. At some point during the chase Reyes threw the bag out of the window and police recovered it. It was found to contain 459.85 grams of cocaine. A subsequent search of the defendant's home turned up a digital scale, $5,000 in cash, and two cellular telephones. The home was 574 feet from a school. The cocaine found in the bag was analyzed at the Hinton lab by Elisabeth O'Brien as the primary chemist and Annie Dookhan as the confirmatory chemist.
Discussion . "A motion to withdraw a guilty plea is treated as a motion for new trial." Commonwealth v. Lavrinenko , 473 Mass. 42, 47 (2015) (quotation omitted). We review "only to determine whether there has been a significant error of law or other abuse of discretion." Ibid . (quotation omitted). Applying the now familiar two-part test set forth in Commonwealth v. Scott , 467 Mass. 336, 338 (2014), there is no doubt that the defendant is entitled to "a conclusive presumption that Dookhan's misconduct occurred in [the 2005] case, that it was egregious, and that it is attributable to the Commonwealth," thus establishing the first prong of the Scott test, at least with respect to the 2005 case. The second prong however, requires the defendant to also "demonstrate a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct." Id . at 355. We agree with the magistrate that there was no such reasonable probability with respect to either the 2003 or the 2005 case.
Evidence of guilt in both cases was strong, even in light of Dookhan's misconduct, and trials would likely have ended in convictions. Specifically, the defendant was caught in 2003, with more than 2,300 grams of cocaine and $10,000 in his possession and his immediate attempt to flee the scene only bolstered the overwhelming evidence of his guilt. With respect to the lead offense in the 2005 case, even though Dookhan was the confirmatory chemist, as the magistrate concluded, the Commonwealth was still likely to have been able to prove the identity of the substance through the primary chemist, particularly where no evidence was adduced that Dookhan engaged in any misconduct that would have affected the primary chemist's analysis.
In addition, the defendant benefited from pleading guilty in that, in addition to receiving sentences on both of the lead offenses that each were well below the maximum penalty of twenty years in prison, the defendant obtained the benefit of concurrent sentences on both cases. Where the defendant committed the 2005 offense while out on bail on the 2003 case, it is unlikely he would have received concurrent sentences after trial. G. L. c. 279, § 8B. The plea bargain removed the risk of having to serve consecutive sentences that totaled upwards of thirty years in prison. The defendant acknowledged as much when he admitted at the motion hearing that he had pleaded guilty because he "was scared of the additional penalty." Based on all of these circumstances, we agree with the magistrate that the defendant has not met his burden under the second prong of Scott .
Conclusion . In case number 0383CR00292, the order entered on July 21, 2014, denying the motion to withdraw guilty plea is affirmed. In case number CR2005-00104, the order entered on July 21, 2014, denying the motion to withdraw guilty plea is affirmed.
So ordered .
Affirmed .