Opinion
10-P-1681
12-21-2011
COMMONWEALTH v. MAURICE O. DUBOSE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On September 6, 1996, the defendant was arrested on a warrant and, as a result of a search pursuant to arrest, was found to be in possession of 8.27 grams of crack cocaine. A detective with the Massachusetts Bay Transportation Authority (MBTA) police department prepared an affidavit subsequent to the arrest, which specified that the defendant was being charged with possession of a class B substance with intent to distribute in violation of G. L. c. 94C, § 32A. However, that same day, a police officer with the MBTA filled out an application for a criminal complaint that listed the offense as possession of crack cocaine in violation of G. L. c. 94C, § 32A, instead of possession with intent to distribute as was specified in the attached affidavit. The [FN1]magistrate issued a criminal complaint against the defendant for possession in violation of G. L. c. 94C, § 34. At the arraignment later that day, a District Court judge amended the complaint to charge the defendant with possession with intent to distribute rather than simple possession. [FN2] On September 24, 1996, the defendant pleaded guilty to possession with intent to distribute. On July 7, 2005, the defendant filed his first motion for a new trial seeking to withdraw his guilty plea. The motion was denied on May 8, 2007. On May 26, 2010, the defendant filed a second motion for a new trial seeking to withdraw his guilty plea. The defendant now appeals from the denial of the second motion.
General Laws c. 94C, § 32A, criminalizes possession of a class B substance with the intent to distribute. Thus, the application for a criminal complaint listed the correct statute but incorrectly identified the charge as simple possession.
The record does not include a transcript of these proceedings nor is there any other evidence presented regarding who requested this amendment. Nowhere in the record does the defendant claim that he objected to this amendment.
Motion for new trial. 'A postconviction motion to withdraw a plea is treated as a motion for a new trial. Accordingly, a judge may grant a defendant's motion to withdraw a guilty plea if it appears that justice may not have been done. The motion is addressed to the sound discretion of the judge, and the judge's disposition of the motion will not be reversed for abuse of discretion unless it is manifestly unjust, or unless the plea colloquy was infected with prejudicial constitutional error.' Commonwealth v. Correa, 43 Mass. App. Ct. 714, 716 (1997) (internal citations omitted).
On appeal, the defendant argues that the motion judge abused his discretion when denying his second motion to withdraw his guilty plea where, the defendant now claims, the criminal complaint was illegally amended from simple possession to possession with intent to distribute in violation of rule 4(d) of the Massachusetts Rules of Criminal Procedure.
'Upon his own motion or the written motion of either party, a judge may allow amendment of the form of a complaint or indictment if such amendmentwould not prejudice the defendant or the Commonwealth.' Mass.R.Crim.P. 4(d), 378 Mass. 849 (1979).
'A defendant's guilty plea, made knowingly, voluntarily and with the benefit of competent counsel, waives all nonjurisdictional defects in the proceedings prior to the entry of the guilty plea.' Commonwealth v. Fanelli, 412 Mass. 497, 500 (1992). See Commonwealth v. Cabrera, 449 Mass. 825, 830 (2007). A jurisdictional defect is one that 'goes to the 'very power of the State to bring the defendant into court," such as the authority of the Superior Court to prosecute a juvenile. Commonwealth v. Clark, 379 Mass. 623, 626 (1980), quoting from Blackledge v. Perry, 417 U.S. 21, 30 (1974). Thus, a defendant who pleads guilty has waived any grounds for suppression, Commonwealth v. Cabrera, supra at 831; has waived any arguments that his convictions are duplicative, Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 130 (2010); and has waived any argument that he was wrongly excluded from a lobby conference, Commonwealth v. Fanelli, supra at 501. Here, the defendant challenges only the process by which the complaint was amended. Cf. Commonwealth v. Wilson, 72 Mass. App. Ct. 416, 418 n.7 (2008) (noting that the complaint was never amended). By pleading guilty, the defendant waived his challenge.
Even if this were not waived, 'a collateral challenge, like the defendant's, to a prior conviction by guilty plea, if the challenge is to advance at all, must be accompanied by sufficient credible and reliable evidence to rebut a presumption that the prior conviction was valid.' Commonwealth v. Lopez, 426 Mass. 657, 664-665 (1998). The defendant has not met his burden of proof to rebut the presumption of validity. The only evidence presented by the defendant that the complaint was amended without his knowledge or consent are the defendant's affidavits. '[A] judge is not required to accept the defendant's self-serving affidavit . . . as sufficient to satisfy the defendant's burden.' Id. at 661. Moreover, we note that there is substantial evidence pointing to the defendant's agreement to the substantive amendment. First, the defendant signed the tender sheet, which described the offense as 'Poss B w/ Int.' Next, the defendant benefitted from pleading guilty to an amended complaint rather than demanding that the complaint be dismissed and then filed again, because he was able to serve his sentence for probation violation concurrently with his sentence for possession with intent to distribute. See Commonwealth v. Milton, 427 Mass. 18, 19 (1998) ('defendant is not entitled to receive credit for time he served awaiting trial on a prior, wholly unrelated charge'). Finally, the defendant waited nine years to challenge his guilty plea in his first motion for a new trial. Lopez, supra at 663 ('dilatoriness in not directly challenging his plea will often suggest that, when the plea was made, the defendant was satisfied with his arrangement'). Thus, the judge did not abuse his discretion in denying the defendant's motion for a new trial.
Cf. Commonwealth v. Colon, 81 Mass. App. Ct. 8, 25 (2011) (defendant who requested amendment to complaint and pleaded guilty did so 'knowingly, intelligently, and voluntarily' and cannot collaterally attack the final judgment).
In a letter to the clerk dated May 29, 2005, the defendant stated, 'I never took the case to trial and took a plea because I was being sentenced for a probation violation.'
Ineffective assistance of counsel. The defendant also argues that counsel on his first motion to withdraw his guilty plea was ineffective because he failed to raise the issue of the amendment to the complaint. For the reasons stated above, we conclude that the failure to raise that issue did not deprive the defendant of 'an otherwise available, substantial ground of defence.' Commonwealth. v. Saferian, 366 Mass. 89, 96 (1974). The ineffective assistance of counsel claim thus fails.
Order denying motion for new trial affirmed.
By the Court (Grasso, Katzmann & Rubin, JJ.), Clerk