Opinion
21-P-38
04-26-2022
COMMONWEALTH v. Michael CARABELLO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Michael Carabello, pleaded guilty to three drug offenses in 2006. Thirteen years later he filed a motion to withdraw his pleas. The plea judge having retired, a different Superior Court judge denied the motion. On appeal, the defendant argues that he should have been permitted to withdraw his pleas because the prosecutor misstated facts during the Commonwealth's offer of proof at the plea hearing, the offer of proof failed to demonstrate a factual basis for the pleas, and he would not have pleaded guilty absent the misstatements. We affirm.
A motion to withdraw a guilty plea is treated as a motion for new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Scott, 467 Mass. 336, 344 (2014). "[A] judge may grant a motion for a new trial any time it appears that justice may not have been done." Id. We review an order denying a motion for a new trial for abuse of discretion or error of law. See id.
The defendant contends that the plea judge erred in finding a factual basis for the charges under Mass. R. Crim. P. 12 (c) (5), as appearing in 442 Mass. 1511 (2004), because the prosecutor misstated facts during the plea colloquy. All agree that the prosecutor inadvertently told the plea judge, incorrectly, that the defendant was arrested at the same time as his codefendant brother, who possessed a significant amount of cocaine and heroin at the time of his arrest. In reality, the defendant was arrested sometime after his brother and possessed only a small amount of marijuana at the time. The plea judge was unaware of the misstatement, however, because neither the defendant nor defense counsel corrected the record, even when the judge directly asked the defendant if he had heard the prosecutor's statements and if he disputed anything that the prosecutor had said. Accordingly, the plea judge did not err in discharging her duty under rule 12 (c) (5) to determine whether sufficient facts on the record established each element of the defendant's offenses. See Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015) (judges determine factual basis for plea based on information available at plea hearing).
Rule 12 was subsequently amended. See 482 Mass. 1501 (2019).
The defendant further argues that the misstated facts on which the plea judge relied failed to demonstrate a factual basis for the pleas. We disagree. According to the Commonwealth's recitation of the facts, an informant told the police that the defendant and his brother would be delivering cocaine in a van to a McDonald's parking lot. The police went to the location and discovered the defendant and his brother in a van. As a result of a consensual search, the police seized approximately ninety-seven grams of cocaine, sixty bundles of heroin, and $1,954 in cash from the brother and a bag of marijuana from the defendant; the defendant's brother told the police he intended to sell the cocaine. Additionally, the defendant admitted to the judge that he possessed Class A and Class B substances with intent to distribute and that he possessed a Class D substance. Thus, the information before the judge showed more than the defendant's mere presence and provided a sufficient factual basis to support the pleas. See Armstrong, 88 Mass. App. Ct. at 758 ("the factual basis for a guilty plea need not satisfy the standard of review for the denial of a motion for a required finding of not guilty").
The defendant did not profess actual innocence of the crimes in his affidavit supporting the new trial motion. Rather, his affidavit offers only a legal conclusion as to the adequacy of the plea colloquy.
We agree with the motion judge that the relevant standard for assessing the defendant's new trial motion is that supplied by rule 30 (b) -- whether "it appears that justice may not have been done" -- and that the drug-lab misconduct cases provide an apt analogy. See Scott, 467 Mass. at 354-358, 360-361 (defendants seeking to withdraw guilty pleas based on government misconduct, newly discovered evidence, or prosecutorial nondisclosure must show reasonable probability that they would have insisted on going to trial if fully informed).
The defendant suggests that he would not have pleaded guilty if the prosecutor had recited the correct information about his arrest. This argument fails as a matter of fact because the motion judge explicitly declined to credit the defendant's assertion that he did not hear the misstatements. We defer to that determination. See Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016).
Even if we fully credited the defendant's affidavit, he has failed to offer a rational explanation for why he was prepared to plead guilty based on his knowledge of the facts immediately prior to the Commonwealth's offer of proof, but would have changed his mind if the judge had determined that the Commonwealth did not supply an adequate factual basis during the colloquy. See Commonwealth v. Lastowski, 478 Mass. 572, 577 (2018), quoting Commonwealth v. Clarke, 460 Mass. 30, 47 (2011) ("the defendant must ‘convince the court that a decision to reject the plea bargain would have been rational under the circumstances’ "). To the contrary, the defendant's long delay in raising his factual basis claim suggests that the prosecutor's misstatements were immaterial to his decision to plead guilty and that he came to regret his choice only later, when he faced collateral consequences of the convictions in connection with Federal sentencing proceedings. See Commonwealth v. Lopez, 426 Mass. 657, 663 (1998).
The judge did not abuse his discretion in denying the defendant's motion.
Order denying motion for new trial affirmed.