Opinion
15-P-126
02-17-2016
COMMONWEALTH v. LARRY D. BERRY.
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
In January, 2008, the defendant, Larry D. Berry, tendered guilty pleas to three counts of breaking and entering in the nighttime with the intent to commit a felony in violation of G. L. c. 266, § 16, and possession of burglarious tools in violation of G. L. c. 266, § 49, and was sentenced to two years in the house of correction on count one, and on the remaining counts was sentenced to concurrent straight probation for three years to commence on and after the serving of the committed sentence. The defendant violated his probation in 2009 and was sentenced to concurrent terms of eight to twelve years in State prison on two of the counts. The defendant appealed his sentence to the appellate division, which revised the sentence to eight to ten years.
He was credited with 242 days of time served.
The defendant appeals from an order of a Superior Court judge entered on January 12, 2015, denying his motion to withdraw his guilty pleas and for a new trial. He argues that his guilty pleas were not voluntary and intelligent because he had not been adequately informed by the judge of the consequences of a disposition of straight probation. He also argues that the facts elicited at the plea colloquy did not establish a sufficient factual basis to conclude that he had committed the crimes of breaking and entering.
The defendant claims that he did not understand that a consequence of the disposition of straight probation was that he could be sentenced to ten to twelve years in prison if he violated probation, contrary to the requirement set forth in Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 579 (2001). The record does not support the defendant's claim. The judge asked the prosecutor about the "maximum penalties on the offenses" and the prosecutor explained that the breaking and entering charges were twenty-year felonies and the burglarious tools charge was a ten-year felony. The judge asked then defendant if he understood that "those are the maximum penalties" and that the judge could impose those penalties if he chose to do so. The defendant stated that he understood. Later, at the sentencing hearing, the defense counsel stated that the defendant considered probation to be a very big risk to him, that the defendant understood that if he was charged again he would be a career criminal and he would receive substantially more time, and that the "probationary period is something that he knows he would have to take very seriously, based on his record." The defendant was specifically informed of the maximum penalty for the crimes charged. Neither crime carried a mandatory minimum penalty. We do not agree that the defendant was not apprised of the risk he faced. The record demonstrates that the defendant was well aware of the potential, serious consequences he would face if he violated probation. Moreover, for the reasons set forth in the Commonwealth's brief at pages 15 through 16, it is extremely unlikely that, given more specific information on the record he would have declined to plead guilty.
The defendant had a lengthy record.
The defendant relies on Commonwealth v. Murphy, 73 Mass. App. Ct. 57, 67 n.10 (2008), in which we stated that 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," to argue that the information conveyed was inadequate. The defendant recognizes that Commonwealth v. Murphy was not published until after his plea colloquy, and thus it is not helpful to his argument. In any event, in Murphy, we also held that the defendant was not entitled to a new trial.
The defendant also argues that the evidence was insufficient to warrant his guilty pleas and convictions on the three counts of breaking and entering in the nighttime with intent to commit a felony. We disagree. It is well established that the statutory element of "breaking" is broadly defined and encompasses all actions violating the common security of a dwelling, including the lifting of a latch and opening the door, opening a window, and moving "to a material degree something that barred the way." Commonwealth v. Tilley, 355 Mass 507, 508 (1969). The facts as described by the prosecutor satisfied both the breaking and entering elements of the crime. See Commonwealth v. Glover, 111 Mass. 395, 402 (1873); Commonwealth v. Burke, 392 Mass. 688, 689 (1984). See also the authorities set forth in the Commonwealth's brief at pages 18 through 19. The facts recited by the prosecutor also satisfied the element of "intent to commit a felony." It is presumed, when a person makes an illegal entry into a dwelling at night, in the absence of contrary evidence, that his intent is to steal. See Commonwealth v. Shedd, 140 Mass. 451, 453 (1886); Commonwealth v. Soares, 51 Mass. App. Ct. 273, 278 (2001). See also the authorities set forth in the Commonwealth's brief at pages 20 through 22.
Order denying motion to withdraw guilty pleas and for new trial affirmed.
By the Court (Cypher, Wolohojian & Carhart, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 17, 2016.