Opinion
10-P-1337
10-11-2011
COMMONWEALTH v. DAQUAWN R. JONES.
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
In this appeal from an order denying his motion for a new trial, the defendant contends that the judge erred in denying his motion to vacate his admission to sufficient facts on a charge of resisting arrest because the admission was not intelligent. We agree.
The defendant's challenge to the intelligence of his admission to sufficient facts rests solely on the contemporaneous record of the proceeding. 'In such circumstances, the question is wholly a matter of law.' Commonwealth v. Sherman, 68 Mass. App. Ct. 797, 800 (2007), S. C., 451 Mass. 332 (2008). Because the judge did not apprise the defendant of the elements of the charge, the intelligence of the admission hinges entirely on the third basis for determining the intelligence of a plea or admission: the defendant's admission to facts comprising the offense that were recited during the colloquy. Even assuming the legal sufficiency of the defendant's acknowledgment that he committed the acts recited by the prosecutor, the prosecutor's recitation as to what occurred did not suffice to constitute an admission to the crime of resisting arrest. 'Fleeing from, or even resisting, a stop or patfrisk does not constitute the crime of resisting arrest.' Commonwealth v. Grant, 71 Mass. App. Ct. 205, 209 (2008). See Commonwealth v. Pagan, 63 Mass. App. Ct. 780, 784 (2005) (resisting arrest statute applies to arrests, not patfrisks); Commonwealth v. Lender, 66 Mass. App. Ct. 303, 305 (2006) (same).
. Because the defendant was pro se, there was no representation that counsel had explained to the defendant the elements of the offense.
Nothing in the factual recitation comprising the defendant's admission suggests that the police intended anything other than a pat frisk of the defendant rather than an arrest. Nor does anything in the recitation suggest that a reasonable person in the defendant's position would have understood that the police were attempting to arrest rather than pat frisk him. See Commonwealth v. Cook, 419 Mass. 192, 199 (1994); Commonwealth v. Obershaw, 435 Mass. 794, 802 n.2, (2002).
Where, as here, a defendant's admission does not encompass all of the elements necessary to amount to the crime, conviction of that crime amounts to a violation of due process. See In re Winship, 397 U.S. 358, 364 (1970); Commonwealth v. Palladino, 358 Mass. 28, 31 (1970); Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 6-7 (2001). Accordingly, the defendant's admission to sufficient facts to the crime of resisting arrest must be vacated.
Order denying motion for new trial as to the charge of resisting arrest is reversed.
By the Court (Grasso, Katzmann & Rubin, JJ.),