Opinion
20-P-858
01-03-2022
COMMONWEALTH v. Derek J. GAUGHAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In November 2014 a criminal complaint issued from the District Court charging the defendant with several offenses, including possession of child pornography and dissemination of obscene matter to a minor. A police report from the Berkley Police Department was attached to the application for the criminal complaint. That report described interactions that the defendant had via Facebook with P.R., a thirteen year old boy from California.
In December 2015 the defendant pleaded guilty to possession of child pornography and dissemination of obscene matter to a minor in exchange for dismissal of the remaining charges. Several years later, in January 2019, the defendant moved to vacate his pleas and for a new trial, claiming that the pleas were not intelligently and voluntarily made because he did not know that he was admitting to criminal conduct against P.R. In support, the defendant submitted an affidavit alleging that he "was not confronted with facts involving" P.R. when he tendered his pleas; that he and his attorney "never discussed facts involving" P.R.; that, until the Commonwealth later petitioned to have him committed as a sexually dangerous person, he "was unaware that any criminal charges in this matter involved" P.R.; and that he "would not have pled guilty ... had [he] know[n] that [P.R.] was a named victim." The motion judge, who was also the plea judge, denied the motion without an evidentiary hearing. The defendant appeals.
Because the Superior Court had final jurisdiction over some of the charged offenses, the defendant was appointed an attorney who was certified to take Superior Court cases.
We review the denial of a motion to vacate a guilty plea for an abuse of discretion, "giv[ing] special deference to the decision of a judge who was, as here, the plea judge." Commonwealth v. Wentworth, 482 Mass. 664, 667 (2019). An abuse of discretion occurs where the "decision resulted from ‘a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives.’ " Commonwealth v. Jacobs, 488 Mass. 597, 600 (2021), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). A judge need not hold an evidentiary hearing if no substantial issue is raised by the motion or affidavits. See Commonwealth v. Lastowski, 478 Mass. 572, 575 (2018).
The judge did not abuse his discretion in denying the defendant's motion. Because a recording or transcript of the plea hearing was not available, it was proper to reconstruct the record through "suitable proof of what happened in court when the guilty plea was taken," which may include the judge's "recitation in a memorandum of decision of what he remembers of the plea colloquy." Commonwealth v. Rzepphiewski, 431 Mass. 48, 54 (2000), quoting Commonwealth v. Quinones, 414 Mass. 423, 432, 434 (1993). Here, the prosecutor who appeared at the plea hearing submitted an affidavit attesting that she "provided the judge with the facts as they were contained in the Berkley police report." Likewise, the judge's decision recites that "the Commonwealth read the facts as contained in the police report by the Berkley Police into the record." The defendant accepts on appeal that this is an accurate account of what occurred at the plea hearing.
In light of the reconstructed record, the judge properly discredited the defendant's claim that he was never "confronted" with the facts concerning P.R. The Berkley police report is replete with details about the defendant's interactions with P.R., including that the defendant sent a nude photograph of himself to P.R. and engaged in sexually explicit dialogue with him, even after learning that he was only thirteen years old. The report also states that a nude photograph of P.R. was found on one of the defendant's electronic devices. The recitation of these facts was sufficient to give the defendant notice of the nature of the charges and provided an ample factual basis for his pleas.
According to the police report, the defendant was found in possession of dozens of photographs depicting young boys exposed and engaged in sexual acts. Thus, even had the report not identified P.R., the facts recited at the plea hearing supported the defendant's conviction of possession of child pornography.
The defendant points out that a special condition of his probation prohibited contact with the "victim," stated in the singular, and he asserts that he was found in violation of that condition for contacting a boy other than P.R. To the extent the defendant objects to the finding of a probation violation, the appropriate time to raise that objection was in the probation proceeding. The issue is not properly before us, and nothing in this record establishes what was actually argued, or specifically found, in the probation proceeding. We note also that another special condition of probation more generally prohibited the defendant from having unsupervised contact with minor children.
In addition, the judge properly discredited the defendant's claim that he and plea counsel never discussed the allegations relating to P.R. As the judge observed, plea counsel was available to sign an affidavit, but the defendant did not submit one. See Commonwealth v. Leng, 463 Mass. 779, 787 (2012) (judge could draw adverse inference from lack of affidavit from trial counsel verifying defendant's allegations). The judge also noted that "[d]uring the pretrial period, there were ongoing negotiations to resolve the ... case by way of a plea" and recounted a "specific[ ]" memory that he allowed a continuance on June 30, 2015, so that plea counsel would "have sufficient time to discuss the ramifications of a guilty plea with [the defendant]." Consequently, the judge found the defendant's claim that plea counsel "never talked to him about the California allegations in the nine months [that] the case was pending" to be "completely lacking in credibility." This was within the judge's sound discretion. See Commonwealth v. Marrero, 459 Mass. 235, 241 (2011), quoting Commonwealth v. Denis, 442 Mass. 617, 633-634 (2004) ("A defendant's ‘self serving affidavits and assertions are not sufficient, on their own, to raise a substantial issue’ warranting an evidentiary hearing").
Order denying motion to vacate guilty pleas and for new trial affirmed.