Opinion
10-P-2281
12-14-2011
COMMONWEALTH v. THOMAS M. SHELDON.
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
We review the motion judge's allowance of the defendant's motion to withdraw his guilty plea for an abuse of discretion. See Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 47-48 (1997) ('An attack on the validity of a guilty plea is properly made by and treated as a motion for a new trial pursuant to Mass.R.Crim.P. 30(b)[, as amended, 435 Mass. 1501 (2001)]. Like all such motions, it is addressed to the sound discretion of the motion judge'). As briefing and argument revealed, there are imponderables here in determining whether the sentence imposed by the judge 'exceeded' that recommended by the Commonwealth. Mass.R.Crim.P. 12(c)(6), as amended, 399 Mass. 1215-1216 (1987). However, we need not decide the matter, or determine whether Commonwealth v. Barber, 37 Mass. App. Ct. 599 (1994), applies here, to resolve this case.
A motion such as the one at issue here is to be allowed if 'it appears that justice may not have been done.' See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 637 (2007). The motion judge in this case was also the judge who accepted the defendant's plea and who imposed sentence upon the defendant. In allowing the motion, the judge could not have found merely that there was noncompliance with rule 12; the judge necessarily credited the affidavit testimony of the defendant that he would have withdrawn his guilty plea had he been given the opportunity to do so at the time sentence was imposed, and -- most importantly -- found that the defendant's plea had not been knowing and voluntary. Cf. Commonwealth v. Glines, 40 Mass. App. Ct. 95, 99-100 (1996) ('[U]nderlying the rules relating to withdrawal of guilty pleas and the cases that led to the rules' formulation is the principle that the defendant must have offered the plea voluntarily and knowingly. A slip in the protocol prescribed by rule 12 does not entitle a defendant to withdraw a guilty plea if it did not significantly affect the substance of the particular requirement' (citations omitted)). In light of this, we cannot say that the judge's conclusion that justice may not have been done in this case was an abuse of discretion, whether or not as a technical matter the twenty-year term of straight probation imposed on or after the defendant's committed sentence meant that it 'exceeded' the sentence recommended by the Commonwealth.
Order allowing motion to withdraw guilty plea affirmed.
By the Court (Cypher, Vuono & Rubin, JJ.),