Opinion
18-P-1027
10-25-2019
COMMONWEALTH v. Jamaal F. DOTTIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On March 11, 2011, a grand jury for the county of Worcester returned an indictment charging Jamaal F. Dottin, the defendant, with murder, G. L. c. 265, § 1. On December 6, 2012, the defendant pleaded guilty to manslaughter in the Worcester County Superior Court. A Superior Court judge (plea judge) accepted the parties' agreed-upon recommendation and imposed a sentence of eight to twelve years in State prison. Nearly five years later, on October 17, 2017, the defendant filed a motion to withdraw his guilty plea and for a new trial. On January 2, 2018, a different Superior Court judge (motion judge) denied the motion without a hearing. This appeal ensued. For the reasons stated below, we affirm.
The plea judge was appointed to the Massachusetts Appeals Court in 2016. Accordingly, a different Superior Court judge decided the motion to withdraw the guilty plea and for a new trial. The plea judge did not participate in the present appeal.
Background. Prior to accepting the defendant's guilty plea, the plea judge conducted a comprehensive colloquy to confirm that the defendant's plea was knowing, voluntary, and intelligent. During the colloquy, the plea judge elicited from the defendant, among other things, that the defendant: was thirty-one years of age; had graduated high school; had no difficulty speaking or understanding the English language; had not taken and was not under the influence of drugs, medication, or alcohol; had not been treated for and did not suffer from any emotional, psychological, or mental condition; and that he understood that the maximum penalty for manslaughter was up to twenty years in State prison.
The plea judge next advised the defendant of the rights that he would forego by pleading guilty, including the right to a fair and impartial trial with or without a jury; that he was presumed innocent and that the Commonwealth had the burden to prove his guilt beyond a reasonable doubt; the right to confront and question witnesses with the assistance of counsel; the right to call witnesses in his defense and present evidence; the right to remain silent and the privilege against self-incrimination; the right to file and be heard on outstanding motions; and the right to appeal any denial of those motions.
The plea judge further explained that in a jury trial the defendant would participate in the selection of a jury of twelve citizens from the community; that a judge would instruct the jury on the law; and that the jury would need to render a unanimous verdict and be convinced of the defendant's guilt beyond a reasonable doubt.
Next, the prosecutor recited the facts that the Commonwealth could have proved had the matter proceeded to trial. The defendant admitted that those facts "fairly and accurately describe[d] [his] conduct in this matter." He also acknowledged that he was pleading guilty "because [he was] guilty and for no other reason."
The defendant admitted to the following facts recited by the prosecutor:
"On September 14th of 2010, [the defendant] called the police at 2:30 in the morning to report that his girlfriend, [the victim], was not breathing at their apartment ... in Worcester. It was apparent to responding paramedics that [the victim] had been dead for several hours prior to their arrival. [The defendant] initially stated that [the victim] had gone out around ten, that he had fallen asleep and awoken around two in the morning to find her not breathing. He initially denied having assaulted her. However, the police investigation revealed the two had been drinking and arguing earlier in that evening. Neighbors had heard an altercation between [the defendant] and [the victim] around 9:30 in the evening. An autopsy would later reveal that the cause of death was homicidal asphyxia. The autopsy confirmed that [the victim] had died several hours before [the defendant] had called the police for assistance and, therefore, confirmed that his initial statement to police was false. [The defendant] in a second interview did admit to police that he and [the victim] had gotten into an argument and that he choked her, but claimed that she was alive and crying after the assault and that he went to sleep and woke to find her several hours later not breathing. There were no percipient witnesses to the homicide. Evidence at trial would have been insufficient to sustain a conviction on a theory of premeditation or extreme atrocity or cruelty. However, at trial we believe that the evidence would have revealed that the couple had been arguing throughout the day and that the incident was committed in the heat of passion or committed with excessive force."
Next, the defendant acknowledged that he had had enough time to speak with plea counsel about changing his plea and the opportunity to discuss all of his rights and defenses and the consequences of pleading guilty. He confirmed that he was satisfied with plea counsel's advice and representation, had not been promised anything to plead guilty, had not been forced, threatened, or pressured into pleading guilty, and was pleading guilty of his own free will. Finally, the defendant acknowledged that he had reviewed, signed, and understood the "Waiver of Defendant's Rights" plea form, acknowledged that he was aware of the rights delineated within that document, and confirmed that he was waiving those rights. At the close of the colloquy, the plea judge declared on the record that he accepted the change of plea; that the defendant understood the rights that he was waiving; that the defendant "knowingly, willingly, voluntarily, and intelligently" waived those rights; and that the plea "was offered knowingly, willingly, voluntarily, and intelligently."
Discussion. The defendant now argues that his guilty plea was not knowingly, voluntarily, and intelligently made because the elements of the offense were neither stated on the record nor discernible, the evidence was insufficient to sustain a conviction against him, he has no memory of the events surrounding the victim's death, and plea counsel provided ineffective assistance. These claims are unavailing.
In support of his motion, the defendant submitted his own affidavit and an affidavit from appellate counsel. The defendant's affidavit averred, among other things, that plea counsel failed to explain the elements of voluntary and involuntary manslaughter; that the defendant did not know whether he was entering a plea to voluntary or involuntary manslaughter; that the facts were not stated completely in the colloquy; that the shock of the incident triggered an occurrence of "global transient amnesia"; that he would not have killed the victim because he loved her; and that plea counsel failed to provide him with an understanding of the evidence and the Commonwealth's burden of proof.
"A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), quoting Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). Motions for a new trial are committed to the sound discretion of the judge, Commonwealth v. Moore, 408 Mass. 117, 125 (1990), and "are granted only in extraordinary circumstances," Commonwealth v. Comita, 441 Mass. 86, 93 (2004). "A judge may make the ruling based solely on the affidavits and must hold an evidentiary hearing only if the affidavits or the motion itself raises a ‘substantial issue’ that is supported by a ‘substantial evidentiary showing.’ " Commonwealth v. Scott, 467 Mass. 336, 344 (2014), quoting Commonwealth v. Stewart, 383 Mass. 253, 260 (1981).
Where, as here, a motion for a new trial is based on ineffective assistance of counsel, the defendant must also show that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The record refutes the defendant's claims. First, the plea hearing transcript shows that his plea was voluntary, knowing, and intelligent. The defendant acknowledged, without equivocation, the rights that he was waiving. His answers, made under oath, were responsive to the questions asked, and the plea judge, as well as the motion judge, rightly credited them. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 634 (2007) ("[A] defendant's sworn statements during a guilty plea colloquy are statements of consequence and not mere conveniences later to be discarded. While not alone determinative of whether the defendant's guilty plea is intelligent and voluntary, the defendant's statements at colloquy have undeniable bearing and heft in considering a later claim to the contrary"). The comprehensive plea colloquy was meticulous and clear, and the defendant did not communicate any misunderstanding in response to the plea judge's questions or explanations. The defendant also signed the "Waiver of Defendant's Rights" plea form, averring, among other things, that the defendant had been advised of the nature of the charges and acknowledging the rights that he was waiving. See Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 583 (2001) (signature on waiver of rights form provided evidence that defendant and counsel discussed consequences of plea).
Second, contrary to the defendant's claim, the record shows that the elements of the offense were stated on the record, and that the evidence was sufficient to sustain a conviction against him for manslaughter. "A plea is intelligently made when the defendant has knowledge of the elements of the charges against him." Commonwealth v. Correa, 43 Mass. App. Ct. 714, 717 (1997). "This requirement can be satisfied in one of several ways: (1) by the judge explaining to the defendant the elements of the crime; (2) by counsel's representation that she has explained to the defendant the elements he admits by his plea; or, (3) by the defendant's stated admission to facts recited during the colloquy which constitute the unexplained elements." Id. In the present case, the detailed facts recited by the prosecutor were more than sufficient to sustain a conviction of either voluntary or involuntary manslaughter. See note 3, supra. The defendant admitted to choking the victim following an argument. As described by the prosecutor, the incident was "committed in the heat of passion or committed with excessive force." See Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006) (explaining elements of voluntary manslaughter); Commonwealth v. Sanna, 424 Mass. 92, 105 (1997) (explaining elements of involuntary manslaughter). The autopsy confirmed that the victim had died several hours before the defendant called the police for assistance, which confirmed the falsity of the defendant's earlier statement to the police. Consistent with the defendant's admission to choking the victim, the autopsy revealed that the cause of death was homicidal asphyxia. See Commonwealth v. Knight, 37 Mass. App. Ct. 92, 98-99 (1994) ; Commonwealth v. Jenner, 24 Mass. App. Ct. 763, 772-776 (1987).
As noted above, the defendant reviewed and signed the "Waiver of Defendant's Rights" plea form, which further undercuts the claim that the defendant did not render a knowing and intelligent guilty plea.
Finally, there is no merit to the claims of ineffective assistance of counsel or the defendant's purported lack of memory of the incident. Apart from the defendant's self-serving affidavit, there is nothing in the record to support these claims. See Commonwealth v. Lopez, 426 Mass. 657, 661 (1998). See also Commonwealth v. McWilliams, 473 Mass. 606, 622 (2016) ("When considering whether a motion for a new trial warrants an evidentiary hearing, the judge must look to the seriousness of the issue itself and the adequacy of the defendant's showing on that issue must be considered" [quotation and citation omitted] ). The absence of affidavits from any expert and from plea counsel highlights the conclusory and self-serving nature of the claims. See Commonwealth v. Hoyle, 67 Mass. App. Ct. 10, 11 (2006) ("Conspicuously absent was an affidavit from the lawyer who had represented the defendant at the plea hearing"). In short, the defendant failed to raise a substantial issue in the motion and affidavits. Combined with the thorough colloquy and evidence from the plea transcript contradicting the defendant's argument, we cannot say that the motion judge abused his discretion in denying the motion without an evidentiary hearing.
To the extent that we do not discuss other arguments made by the defendant, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Order denying motion to withdraw guilty plea and for new trial affirmed.