Opinion
14-P-142
05-18-2015
COMMONWEALTH v. DANIEL J. TWEEDIE.
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, Daniel J. Tweedie, appeals from the orders denying two motions to withdraw his plea of guilty to the charge of breaking and entering a building in the daytime with the intent to commit a felony, G. L. c. 266, § 18. He contends that his plea was not knowing or voluntary because neither counsel nor the judge informed him of the elements of the offense and he did not admit to facts that established his intent to commit a felony. We affirm.
The defendant filed a motion to withdraw the guilty plea, pro se, and a timely notice of appeal. Thereafter, counsel was appointed and filed a second motion to withdraw the guilty plea and filed a timely notice of appeal. The two appeals were consolidated.
The defendant also pleaded guilty to trespassing, G. L. c. 266, § 120. He did not request a new trial on this conviction.
At the plea hearing, the Commonwealth offered to prove the following facts. At around 6:00 P.M., during daylight hours, a police officer with the town of Ware was conducting a building check at a commercial building bearing a "no trespass" sign. The officer heard a noise and approached a fenced-in area behind the building, where he saw the defendant come off of a metal container and walk through the area. The officer entered the building through a broken window and saw footprints on the top of a metal container matching the shoes worn by the defendant. The defendant admitted to the officer that he had been in the building and said "that he was just looking around for scrapping" and that he had not "seen the no trespassing sign." After this recitation at the hearing, the judge asked the defendant if those facts were true, to which he replied, "I didn't argue with any of that. You know, I was looking for scrap metal. It wasn't [that] I was trying to rob somebody . . . ."
"For a guilty plea to be valid, it must be made voluntarily and intelligently." Commonwealth v. Hart, 467 Mass. 322, 325 (2014). The requirement that a plea be made intelligently may be met by a defendant's admission to facts constituting the crime, even if he is not aware that the facts he admits are the elements of the crime. Commonwealth v. Colantoni, 396 Mass. 672, 679 (1986) (guilty plea not involuntary where defendant responds affirmatively to facts stated by another if facts necessarily imply all the elements of the crime). Commonwealth v. Hart, supra (same). Such is the case here, where the defendant freely admitted to facts establishing that he broke and entered into the building, in the daytime, with the intent to take scrap metal from there. See G. L. c. 266, § 18.
The defendant argues that he expressly denied any intent to commit a felony in his response to the judge's inquiry. Rather, he claims that one could easily infer from his statements that he was investigating whether the lawful owner of the building might be interested in having scrap metal removed from the property.
Here, although the defendant denied that he had any intent to "rob somebody," he admitted that he broke into private property looking for scrap metal to take. While he does not explicitly say that he thought any scrap metal in the building had been abandoned, that is implicit in his reference to "scrapping." Compare Commonwealth v. Liebenow, 470 Mass. 151, 152 (2014). However, unlike in Liebenow, where the property in question was outside, here the property was inside the building the defendant admitted entering illegally and thus could not be considered abandoned. Thus his admission "that he was just looking around for scrapping" and "that he was just looking in the building" necessarily implied, see Commonwealth v. McGuirk, 376 Mass. 338, 343 (1978); Commonwealth v. Colantoni, 391 Mass. 672, 679 (1986), that he had an intent to take the property of another, i.e., an intent to commit a felony. See G. L. c. 266, § 20 (stealing in a building a felony). The defendant's argument is without merit. The record of the plea colloquy supports the denial of the defendant's motions.
"Scrap" is defined in Merriam-Webster's Collegiate Dictionary (11th ed. 2003) 1115 as "manufactured articles or parts rejected or discarded . . .; esp.: waste and discarded metal."
Orders denying motions to vacate guilty plea affirmed.
By the Court (Vuono, Milkey & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 18, 2015.