Opinion
16-P-869
06-22-2017
COMMONWEALTH v. Hipolito CRUZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, who in June of 2009 pleaded guilty to trafficking in cocaine in an amount between fourteen and twenty-eight grams, G. L. c. 94C, § 32E(b ), and distribution of cocaine, G. L. c. 94C, § 32A(c ), now appeals the order denying his motion to withdraw his plea and for new trial on the ground that he would not have tendered his plea had he known of Annie Dookhan's malfeasance. We affirm.
We review the denial of a new trial motion to determine whether the judge "committed ‘a significant error of law or other abuse of discretion.’ " Commonwealth v. Scott, 467 Mass. 336, 344 (2014), quoting from Commonwealth v. Sherman, 451 Mass. 332, 334 (2008). "[B]ecause a Superior Court judge affirmed the order of the special magistrate, we treat the magistrate's findings and rulings as those of the judge and apply the same standard of review." Commonwealth v. Williams, 89 Mass. App. Ct. 383, 388 (2016).
"Where, as here, the plea is challenged on grounds of Dookhan's misconduct, the test to assess whether these requirements have been met begins with a conclusive presumption that the misconduct was egregious and that its occurrence was attributable to the Commonwealth (prong one), and then requires a defendant to show that ‘the misconduct influenced his decision to plead guilty or, put another way, that it was material to that choice’ (prong two). Materiality turns on proof of ‘a reasonable probability that [the defendant] would not have pleaded guilty had he known of Dookhan's misconduct’ and that he would have insisted on going to trial. This analysis requires that we consider the ‘totality of the circumstances' and the ‘full context of the defendant's decision to enter a plea agreement.’ In addition, ‘[t]he reasonable probability analysis must be based on the actual facts and circumstances surrounding the defendant's decision at the time of the guilty plea in light of the one hypothetical question of what the defendant reasonably may have done if he had known of Dookhan's misconduct.’ " Id. at 388-389 (citations omitted).
The totality of the circumstances the defendant faced when deciding to plead were as follows. By prearrangement, he sold what appeared to be cocaine to an undercover officer who paid one hundred dollars in marked bills. Those marked bills were in the defendant's possession when he was apprehended soon after the sale. Fifteen additional grams of what appeared to be cocaine were found in the driver's side door of the car the defendant used to drive to and from the sale. These drugs were found after a trained canine had alerted the officers to their presence. The substances were tested in the first instance by State chemist Della Saunders, and secondarily by Annie Dookhan. Saunders opined that the substances were cocaine and attested that the amount located in the car door weighed 15.45 grams. Dookhan confirmed that the substances were cocaine, offering no opinion as to the weight. The defendant's motion to suppress the drugs in the car door had been denied. The defendant acknowledged having three prior drug offenses, and he accordingly faced a mandatory minimum sentence of five years on the charge of distribution as a second and subsequent offense. See G. L. c. 94C, § 32A(d ). The Commonwealth was willing to drop the subsequent offense component of the distribution charge, thus eliminating the five-year minimum sentence, and agreed that the defendant would serve only three years (the minimum on the trafficking charge), see G. L. c. 94C, § 32E(b ), followed by two years of probation.
Counsel acknowledged at oral argument that the common practice was for the primary chemist, not the secondary one, to attest to the weight.
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In these circumstances, we discern no abuse of discretion in the denial of the defendant's motion for new trial. On the merits, the case against the defendant was extremely strong. Although the defendant argues that he could have presented a defense that the substance seized from his car was counterfeit, we do not view that defense as particularly strong given the other circumstances. The defendant's argument that he could have impeached Annie Dookhan at trial rests on the tenuous assumption that she would testify and, moreover, overlooks the fact that the primary chemist independently determined that the substance was cocaine and ascertained its weight. Finally, the defendant obtained a favorable disposition as a result of the plea agreement.
Order denying motion to withdraw guilty plea and for new trial affirmed.