Opinion
15-P-696
04-06-2017
COMMONWEALTH v. Calvin STOKES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Calvin Stokes, appeals from an order denying his motion to withdraw his guilty plea to the offense of possession of cocaine with the intent to distribute in violation of G. L. c. 94C, § 32A, and an order denying his amended motion to withdraw the same guilty plea. His motions arise from the misconduct of Annie Dookhan, a chemist who was employed at the William A. Hinton State Laboratory Institute (Hinton lab or lab). See Commonwealth v. Scott, 467 Mass. 336, 338-342 (2014) (detailed chronology of Hinton lab scandal). On appeal, the defendant argues that the judge erred in denying his motions because he showed a reasonable probability that he would not have pleaded guilty if he had known of Dookhan's misconduct. We affirm.
Background. 1. Facts pertaining to plea. At his plea hearing, the defendant admitted to the following facts. On the evening of November 21, 2005, three members of the Boston police department's drug control unit, while on patrol, observed a female enter a parked car, later identified as belonging to the defendant, and then quickly exit the car. After the female exited, the defendant also stepped out of the car, and the officers observed him holding what appeared to be a plastic baggie in one hand. The defendant then reentered his car and drove away at a high rate of speed, while the officers followed in an unmarked patrol car. They eventually stopped the defendant, and a patfrisk of his person revealed eight baggies containing what the officers believed to be "crack" cocaine. The defendant was arrested and charged with trafficking in cocaine in violation of G. L. c. 94C, § 32E, as the total weight of the drugs recovered exceeded fourteen grams, and distribution of cocaine in violation of G. L. c. 94C, § 32A. The defendant later pleaded guilty to a single charge, namely, the lesser included offense of possession of cocaine with the intent to distribute.
We summarize the facts found by the regional administrative justice, reserving certain details for discussion with the issues raised. See Commonwealth v. Charles, 466 Mass. 63 (2013) (describing role and authority of regional administrative justices and special judicial magistrates in procedures adopted for matters related to Dookhan's misconduct). As the regional administrative justice here adopted the findings of the special judicial magistrate, we treat the magistrate's findings as those of the regional administrative justice. See Commonwealth v. Williams, 89 Mass. App. Ct. 383, 388 (2016). We supplement those findings "with evidence in the record that is uncontroverted and that was implicitly credited by the [regional administrative justice]." Commonwealth v. Hernandez, 473 Mass. 379, 380 (2015) (quotation omitted).
The Legislature has since amended G. L. c. 94C, § 32E(b )(1), to define trafficking as possessing "eighteen grams or more" of cocaine with the intent to distribute. See G. L. c. 94C, § 32E(b )(1), as appearing in St. 2012, c. 192, §§ 20-21.
2. Motions to withdraw plea. Nearly eight years after the defendant's plea, in light of the issues that surfaced at the Hinton lab, the defendant moved to withdraw his guilty plea. After a hearing at which exhibits were introduced, a special judicial magistrate, who had been assigned to preside over criminal cases related to Dookhan's misconduct, issued proposed findings of fact and rulings of law, and recommended denying the defendant's motion. As required, the magistrate applied the two-prong test set forth in Commonwealth v. Scott, 467 Mass. at 346-358 (Ferrara-Scott test).
As to the first prong, the magistrate found that the defendant was entitled to a conclusive presumption that egregious government misconduct occurred in his case because he had shown that Dookhan had signed the drug analysis certificates as an assistant analyst.
As to the second prong, the magistrate concluded that the defendant had failed to meet his "burden of showing that if he knew about the misconduct of Dookhan he would not have pled guilty." The magistrate rested this conclusion on her findings that the defendant "presented no evidence to detract from the factual base to support his guilty plea" other than the argument "presented by [the defendant] through his attorney that he would not have pled guilty because of the subsequent repercussions of being charged with an enhancement such as happened." She also found that "[t]he sentence imposed by [the sentencing judge] represented a substantial reduction in what [the defendant] was facing if he went to trial." Because his two-year sentence ran concurrent with the three years he had remaining on his parole violation, "[e]ssentially, [the defendant] did no time for the indictments charged in this case." The magistrate therefore recommended that the defendant's motion to withdraw his guilty plea be denied.
The defendant did not file an affidavit with his motion.
The defendant filed an objection to the magistrate's proposed findings, rulings, and order. See Commonwealth v. Charles, 466 Mass. 63, 71 & n.9 (2013) (describing review procedure). The regional administrative justice (motion judge) adopted the magistrate's proposed findings and rulings and denied the defendant's motion, adding that the two-year sentence was "judicially ‘recommended’ to run concurrent with" his parole violation sentence. The defendant filed a notice of appeal from that order. The defendant then filed an amended motion to withdraw his guilty plea, which was also denied by the motion judge. The defendant's appeal from the order denying his amended motion was consolidated with the appeal from the order denying his first motion to withdraw the guilty plea.
The defendant's motion to expand the record with a legible copy of the motion judge's order denying his motion is allowed.
The defendant argues that the magistrate and motion judge improperly shifted the burden to the defendant to "present new evidence to detract from th[e] factual basis [of the plea]," instead of relying on the "facts known to the parties at the time of the guilty plea." This is incorrect. The magistrate found that the defendant presented no evidence to detract from the factual basis of his guilty plea. This is a proper application of the Ferrara-Scott test, as described infra.
Discussion. 1. Standard of review. "A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v. Furr, 454 Mass. 101, 106 (2009). The disposition of such a motion is "committed to the sound discretion of the judge," and "the judge's findings of fact are to be accepted if supported by the evidence." Scott, 467 Mass. at 344. "We review an order [on] a new trial motion to determine if the judge committed a significant error of law or other abuse of discretion." Ibid. (quotation omitted). Here, because the motion judge adopted the magistrate's findings and rulings, we apply the same standard of review to them. Commonwealth v. Williams, 89 Mass. App. Ct. 383, 388 (2016).
2. Ferrara-Scott test. Relying on Ferrara v. United States, 456 F.3d 278, 290-297 (1st Cir. 2006), the Supreme Judicial Court articulated a two-prong test for analyzing a defendant's motion to withdraw a guilty plea in cases involving Dookhan's misconduct at the Hinton lab. See Scott, supra at 346-358. Under the first prong, a defendant must show egregious misconduct by the government that preceded the entry of the defendant's guilty plea, and where, as here, Dookhan signed the certificates as an assistant analyst before the defendant entered his plea, Scott provides that such misconduct is conclusively presumed. Id. at 347, 351-352. See Commonwealth v. Ruffin, 475 Mass. 1003, 1004 (2016) ("Underlying [the conclusive presumption established in Scott ] is the assumption that the misconduct evidenced by the certificate antedated the guilty plea").
The finding on the first prong is not challenged on appeal. We note that it is supported by the record: Dookhan signed the certificates as an assistant analyst on January 13, 2006, and the defendant entered his plea on May 22, 2006.
Under the second prong, "the defendant must demonstrate a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct." Scott, supra at 354-355. The defendant must "particularize Dookhan's misconduct to his decision to tender a guilty plea." Id. at 354. This is necessarily a fact-specific inquiry. See id. at 356.
The Scott court outlined the following factors that may be relevant to the defendant's showing under this prong: "(1) whether evidence of the government misconduct could have detracted from the factual basis used to support the guilty plea, (2) whether the evidence could have been used to impeach a witness whose credibility may have been outcome-determinative, (3) whether the evidence was cumulative of other evidence already in the defendant's possession, (4) whether the evidence would have influenced counsel's recommendation as to whether to accept a particular plea offer, and (5) whether the value of the evidence was outweighed by the benefits of entering into the plea agreement." Scott, supra at 355-356. Additional "factors may include whether the defendant had a substantial ground of defense that would have been pursued at trial or whether any other special circumstances were present on which the defendant may have placed particular emphasis in deciding whether to accept the government's offer of a plea agreement." Id. at 356.
The defendant argues that had he known about Dookhan's misconduct, he would have insisted on going to trial, because it was likely that Dookhan's misconduct would have invalidated the lab's analysis of the substances, thus rendering the Commonwealth unable to prove that they were cocaine. Specifically, he argues that without the lab's analysis of the substances and their weights, there was no evidence to support the indictments against him, and that Dookhan's admission that she tampered with evidence as an analyst "would likely control a jury weighing her testimony that the defendant possessed cocaine." This, he argues, makes it reasonably probable that had he known about Dookhan's misconduct, he would have chosen to go to trial.
However, contrary to the defendant's claims, the lab analysis certificates were not the only evidence the Commonwealth presented to support its case against the defendant. See Commonwealth v. Dawson, 399 Mass. 465, 467 (1987) ("Proof that a substance is a particular drug need not be made by chemical analysis and may be made by circumstantial evidence"). Officers observed a female, who they overheard on her cellular telephone saying that she was going to buy a "forty," enter and quickly exit the defendant's car. They recovered a bag of a substance from the female, who explained that she just bought crack cocaine from the defendant. Officers located eight bags of a similar substance after a patfrisk of the defendant, and found three more bags in the back of the police cruiser after transporting the defendant to the police station. An experienced officer of the drug control unit identified the substances recovered from the defendant and the female as having an appearance consistent with that of cocaine.
The Commonwealth's motion to expand the record with the police report and grand jury minutes is allowed.
Finally, even though Dookhan signed the drug certificates as an assistant analyst, her misconduct does not wholly invalidate the work done by the primary analyst. See Commonwealth v. Antone, 90 Mass. App. Ct. 810, 817 (2017) (Dookhan's misconduct does not "render the work of the primary chemist a nullity"; primary chemist's role "was entirely independent of the testing done by Dookhan"). Thus, as in Antone, "in deciding whether to plead guilty the defendant had to consider the likelihood that at least some aspect of that testing would be admissible." Ibid. See Commonwealth v. Marte, 84 Mass. App. Ct. 136, 140-144 (2013) (field testing admitted, and in combination with circumstantial evidence sufficient to prove identity of substance). Thus, in total, there was evidence apart from the testing done by Dookhan that the Commonwealth may have been able to use at trial in order to prove that the substances were cocaine.
We note that the primary chemist in Antone was also the primary chemist on the drug certificates in this case.
Furthermore, as the magistrate found, the defendant received a sentence that was quite favorable compared to the potential sentence he faced if he had gone to trial. In exchange for his plea, the Commonwealth dismissed both the trafficking and distribution charges, leaving only the lesser included charge of possession with intent to distribute, which carried a potentially much more lenient sentence than what he initially faced. In addition, at the time of his plea, the defendant was on parole for a murder conviction, and was subsequently sentenced to three years on the parole violation. Since the sentencing judge adopted the recommendation of both parties that the defendant's sentence run concurrently with his parole violation sentence, as noted above, the defendant essentially served no additional time as a result of his plea. Thus, in this case, the "value of the evidence of Dookhan's misconduct was outweighed by the benefits of entering into a favorable plea agreement that eliminated" a potentially much longer sentence "in a case in which the defendant was confronted with a variety of evidence, apart from the confirmatory test[s] conducted by Dookhan, that the Commonwealth may have been able to use to prove the substances were cocaine." Antone, supra at 819.
The order denying the amended motion to withdraw the guilty plea is affirmed for the reasons stated by the motion judge.
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Conclusion. We agree with the magistrate and motion judge that the defendant "has failed to raise any substantial grounds for a defense and has failed to meet the tests in Ferrara." Accordingly, we affirm the orders denying the defendant's motion and amended motion to withdraw his guilty plea.
So ordered.
Orders affirmed.