Opinion
15-P-222
01-21-2016
COMMONWEALTH v. BRANDON M. RAWSON.
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 an order of a judge in the District Court on December 16, 2014, revoking his probation and sentencing him to a term of incarceration. We affirm.
Background. On October 18, 2013, a complaint issued in the District Court charging the defendant with (1) assault and battery, in violation of G. L. c. 265, § 13A(a), (2) larceny of property valued at more than $250, in violation of G. L. c. 266, § 30(1), and (3) intimidation of a witness, in violation of G. L. c. 268, § 13B. The charges arose out of an altercation he had with his girl friend (the victim) the previous day. The defendant appeared pro se at a plea hearing on February 25, 2014, having signed a waiver of counsel form. The judge inquired of the defendant whether he had signed the "green sheet" (the official tender of plea or admission and waiver of rights form), and the defendant stated that he had. The judge asked the defendant, "Does that signature tell the Court you have read and understood the paragraphs above your signature?" The defendant responded, "Yes."
The defendant acknowledged the following facts to be true. While traveling in a vehicle in Montague, the defendant and the victim had an argument. The defendant attempted to take her wallet from her lap, and then forcibly placed the gearshift in park while the vehicle was moving. As she was about to call the police, the defendant grabbed the victim's cellular telephone and exited the vehicle. The victim also exited the vehicle and tried to retrieve her cell phone from the defendant, who punched her in the mouth, causing her to fall to the ground. The victim suffered a swollen and bloody lip, as well as a scrape on her wrist consistent with falling. Later, when police officers placed him under arrest for assault and battery, the defendant admitted to taking the cell phone while the victim was trying to use it.
Immediately following the recitation of these facts, the judge held a colloquy with the defendant, beginning as follows:
The court: "Mr. Rawson, did you hear that?"
The defendant: "Yes."
The court: "Are those facts true?"
The defendant: "Yes."
The court: "That's what happened?"
The defendant: "Yes."
The judge advised the defendant of the rights he was giving up by his admission to sufficient facts. The judge asked the defendant whether he had taken drugs, alcohol, or prescription medications in the preceding twenty-four hours; whether the defendant suffered from any physical or mental infirmities that would impair his cognitive abilities; whether anyone had made promises, threats, or otherwise coerced the defendant; and whether the defendant was confused about anything the judge had told him. The defendant responded in the negative to all of these questions.
After finding a factual basis for the defendant's admissions, and that they were made knowingly and voluntarily, the judge adopted the parties' joint recommendation to continue the first and third charges without a finding, and to dismiss the larceny charge. The defendant was placed on probation for one year with the condition that he obtain a substance abuse evaluation and, if appropriate, treatment. Additional probationary conditions were imposed on April 22, 2014.
On November 16, 2014, the defendant was charged with new crimes relating to violence against the victim. He was arraigned on those charges on the following day. The judge also found that there was probable cause to believe the defendant was in violation of his probation. The defendant was ordered detained on the pending charges, bail was set on the probation case, and a final probation violation hearing was scheduled for December 16, 2014.
At the final probation violation hearing on December 16, the defendant was represented by counsel, who argued for the first time the issue that is the subject of this appeal. The defendant alleged that the plea colloquy on February 25, 2014, was inadequate because he was not specifically advised of the crimes to which he admitted nor the maximum sentence he could face if he were later found to be in violation of probation. Nevertheless, the defendant stipulated that if his earlier admission were valid, the Commonwealth could prove a violation of probation by a preponderance of the evidence. After listening to a recording of the February, 2014, colloquy, the judge rejected the defendant's contention and found that he had validly waived his rights and was therefore validly on probation. The defendant's probation was revoked and guilty findings entered as to the assault and battery and intimidation of a witness charges. The defendant was sentenced to one year in the house of correction.
The judge at the probation revocation hearing was not the judge who presided over the defendant's admission to sufficient facts.
The defendant does not challenge the validity of his admission to sufficient facts with regard to the assault and battery charge.
Discussion. The defendant argues that his admission to sufficient facts was defective in two ways: (1) he was not advised of the possible range of sentences he could face; and (2) he was not advised of the elements of the crime of intimidation of a witness. We note at the outset that the proper way in which to raise these issues is a motion for a new trial. Nevertheless, because the judge proceeded to consider the merits of the defendant's claims, we address each in turn.
See, e.g., Dunbrack v. Commonwealth, 398 Mass. 502, 504 (1986) ("The appropriate method for attacking the lawfulness of the admission to sufficient facts and the sentence imposed is a postconviction motion for new trial pursuant to rule 30[b] of the Massachusetts Rules of Criminal Procedure, 378 Mass. 900 [1980]").
a. Advisement of maximum sentence. The parties do not dispute that the plea judge did not inform the defendant, in open court as required by Mass.R.Crim.P. 12(c)(3)(B), as appearing in 442 Mass. 1511 (2004), of the possible sentences he then faced, or could face in the event of a probation revocation. See Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 574-578 (2001). However, where, as in this case, the plea judge adopts the parties' recommendation for a sentence, the judge's failure specifically to advise the defendant of the possible maximum sentence for the crimes in question is not per se prejudicial error. See Commonwealth v. Cavanaugh, 12 Mass. App. Ct. 543, 546 (1981). See also Rodriguez, supra at 580; Commonwealth v. Murphy, 73 Mass. App. Ct. 57, 63-64 (2008). We analyze each case to determine whether the required advisement would have made a difference in the defendant's decision to admit to sufficient facts. Rodriguez, supra.
To be sure, "the best practice is for a judge's plea colloquy specifically to advise a defendant receiving a sentence of straight probation that, if he does not successfully complete his period of probation and any period of incarceration were to be imposed, he would face the minimum and maximum sentences applicable to the charges to which he is pleading guilty. The applicable minimum and maximum sentences ought then to be described." Commonwealth v. Murphy, 73 Mass. App. Ct. at 67 n.10.
Here, the defendant has made no claim that he would not have admitted to sufficient facts had he been advised orally of the range of sentences he faced. Although he was self-represented, he does not challenge the validity of his waiver of the right to counsel. At the plea hearing, the defendant acknowledged that he was forfeiting the opportunity to consult with an attorney. In this case, there is no reason to believe that the judge's failure to comply with Mass.R.Crim.P. 12(c)(3)(B) had any effect on the defendant's decision to admit to sufficient facts.
The defendant signed the waiver of rights form, which reads, in pertinent part, "I am aware of the nature and elements of the charge(s) to which I am entering my guilty plea or admission. I am also aware of the nature and range of the possible sentence(s); I am aware that sentences can be imposed one after the other." The defendant makes no claim that his plea was coerced or that he lacked competency to understand the nature of the plea proceedings or the conditions imposed by his probation. He does not assert factual innocence.
b. Advisement of elements of crime. The defendant next argues that his plea was not intelligently and voluntarily made because he was not informed of the elements of the crime of intimidation of a witness. We disagree. In Henderson v. Morgan, 426 U.S. 637, 646 (1976), the United States Supreme Court held that a guilty plea is neither voluntary nor intelligent where the defendant is ignorant of a crucial element of the crime. However, the Supreme Judicial Court has noted that Henderson does not apply "if the record shows affirmatively . . . either: (1) an explanation by the judge of the elements of the crime; or (2) a representation that counsel has explained to the defendant the elements he admits by his plea; or (3) defendant's statements admitting facts constituting the unexplained elements." Commonwealth v. Colantoni, 396 Mass. 672, 678-679 (1986). We look to the entire circumstances of the plea to determine whether the defendant "was unaware of the facts he was impliedly admitting by his plea and [whether] he did not intend to admit those facts." Id. at 680.
Under the circumstances of this case, to prove the charge of intimidation of a witness, the Commonwealth was required to show at trial that the defendant wilfully misled, intimidated, or harassed "a witness or potential witness at any stage of a criminal investigation." G. L. c. 268, § 13B(1)(c)(i), as amended by St. 2006, c. 48, § 3. The defendant argues that the facts to which he admitted were insufficient to permit the inference that the victim was a potential witness in a criminal investigation, because her purpose "appears" to have been to protect the defendant from harming himself. The defendant admits that the facts are sufficient to support a criminal conviction of assault and battery, as well as a conviction of larceny. Following the commission of these crimes, the victim attempted to use her cell phone to call the police, and the defendant forcefully prevented her from doing so. We agree with the Commonwealth that this conduct could reasonably be construed as an attempt by the defendant to hinder the victim's effort to "furnish[] information to a criminal investigator relating to a crime." Commonwealth v. Isle, 44 Mass. App. Ct. 226, 228 (1998). By admitting to the facts alleged by the Commonwealth, which constituted the unexplained elements of the crime, the defendant satisfied the third alternative of Colantoni, and the admission to sufficient facts must stand.
Conclusion. For the above reasons, the record demonstrates that the defendant's admission to sufficient facts on February 25, 2014, was the product of an intelligent and voluntary waiver of his rights. Any deficiencies in terms of the judge's compliance with the requirements of Mass.R.Crim.P. 12 did not prejudice the defendant.
Order revoking probation and imposing sentence affirmed.
By the Court (Grainger, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 21, 2016.