Opinion
No. 12–P–1826.
2013-08-30
COMMONWEALTH v. Felipe MERCADO.
By the Court (TRAINOR, GRAHAM & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant pleaded guilty to two counts of violating an abuse prevention order and to indecent assault and battery on a person over the age of fourteen years, second or subsequent offense. Based on the joint recommendation of the parties, a Superior Court judge sentenced the defendant to a term of imprisonment, followed by community parole supervision for life (CPSL). The defendant filed a Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), motion challenging the legality of his CPSL sentence. The motion was denied.
On appeal, the defendant makes three arguments: (1) that the indictment on the charge of indecent assault and battery was insufficient; (2) that his guilty plea was not voluntary and intelligent because the colloquy was misleading; and (3) that CPSL is unconstitutional. We affirm.
Discussion. 1. Sufficiency of indictment. The defendant first argues that the portion of the indictment charging him as a repeat offender, and thus rendering him eligible for CPSL, was insufficient under Commonwealth v. Pagan, 445 Mass. 161, 169–170 (2005), and Commonwealth v. Kateley, 461 Mass. 575, 584–585 (2012). Any deficiencies in the indictment, however, are irrelevant because the defendant pleaded guilty. “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 G.L. c. 277, § 47A; Commonwealth v. Senior, 454 Mass. 12, 14 (2009). Contrary to the defendant's assertion, the sufficiency of the indictment is not a jurisdictional defect.
See Commonwealth v. Buckley, 76 Mass.App.Ct. 123, 129–130 (2010). Accordingly, we conclude that the defendant waived his right to challenge the sufficiency of the indictment when he pleaded guilty. 2. Voluntariness of plea. The defendant next argues that his plea was not voluntarily and intelligently made. A fair reading of the colloquy indicates that the defendant understood his rights and tendered his guilty plea voluntarily. According to the defendant, however, it was not made intelligently because he did not understand the CPSL condition that would be imposed on him. We disagree.
Commonwealth v. Batista, 465 Mass. 1008 (2013), did not alter this general rule. In Batista, supra at 1008, the plea judge did not impose CPSL on the defendant, even though the statute mandated CPSL, and so the Commonwealth appealed. Because it was the Commonwealth that appealed the sentence, the defendant was permitted to “raise any ground evident in the record to support his position,” including that the complaint was insufficient. Id. at 1009. The conclusion in Batista was based on the unique procedural posture of the case, and it did not purport to limit the general rule, as discussed in Fanelli, that a guilty plea waives all nonjurisdictional defects. Ibid.
As she was required to do under Mass.R.Crim.P. 12(c)(3)(B), as amended, 399 Mass. 1215 (1987), the judge informed the defendant that CPSL would begin at the completion of his incarceration. The defendant indicated his understanding. Rule 12 does not require the judge to inform the defendant of the specific conditions imposed as part of a CPSL sentence. Nor does our case law obligate the judge to discuss the general conditions and the consequences of imposed sentences. See Commonwealth v. Stanton, 2 Mass.App.Ct. 614, 622 (1974) (“The judge was not required to advise the defendant on the legal and practical complexities of the parole law”). See also Commonwealth v. Morrow, 363 Mass. 601, 605–606 (1973); Commonwealth v. Albert A., 49 Mass.App.Ct. 269, 271 (2000). Rather, this challenge appears to be that of a defendant who is dissatisfied with his sentence, and dissatisfaction is not a sufficient reason to grant postconviction relief. See Commonwealth v. DeMarco, 387 Mass. 481, 483 n. 5 (1982). In short, any alleged deficiencies in the colloquy stemming from the failure to discuss the conditions of CPSL do not render the guilty plea unconstitutionally involuntary. After review of the record, it is clear that the defendant entered his guilty plea voluntarily and intelligently.
The defendant also argues that the judge's lack of knowledge about CPSL hindered the defendant's ability to make an intelligent decision whether to plead guilty. When informed that it was part of the sentence, the judge read the statute on the bench and engaged in a brief conversation with defense counsel to flesh out the penalties for violating CPSL. Nor are we persuaded by the defendant's assertion that, during the colloquy, he was not agreeing to CPSL, but rather was agreeing to the idea that the only way to violate CPSL was to have a new criminal charge brought against him. A full and fair reading of the transcript indicates that he understood that his sentence included CPSL, and, as discussed supra, the judge was not required to inform the defendant of every possible way he could violate CPSL.
3. Constitutionality of CPSL. Finally, the defendant asks us to declare the enhanced punishment of CPSL unconstitutional as a violation of the separation of powers.
It would be imprudent to decide the constitutionality of CPSL at this time because the same issue is currently pending before the Supreme Judicial Court in Commonwealth v. Cole, Supreme Judicial Ct., No. SJC–11316, with oral arguments scheduled for the fall of 2013.
The argument in the defendant's brief relied heavily on the amicus brief submitted by the Committee for Public Counsel Services in Kateley, 461 Mass. 575. The court did not reach the separation of powers argument in Kateley.
If the Supreme Judicial Court were to determine that the imposition of CPSL is unconstitutional, the defendant can challenge his sentence as illegal by filing a motion under Mass.R.Crim.P. 30(a).
According to the solicitation for amicus briefs, the issue in the case is “[w]hether the statutory scheme of lifetime community parole pursuant to G.L. c. 6, § 178H, and G.L. c. 127, § 133D, unconstitutionally implicates the separation of powers doctrine.”
See Commonwealth v. Christian, 429 Mass. 1022, 1022 (1999); Commonwealth v. Melo, 65 Mass.App.Ct. 674, 676 (2006).
.Rule 30(a) reads:
“Any person who is imprisoned or whose liberty is restrained pursuant to a criminal conviction may at any time, as of right, file a written motion requesting the trial judge to release him or her or to correct the sentence then being served upon the ground that the confinement or restraint was imposed in violation of the Constitution or laws of the United States or of the Commonwealth of Massachusetts.”
It is not necessary that the defendant be incarcerated at the time of filing a motion under rule 30(a). Commonwealth v. Azar, 444 Mass. 72, 76–77 (2005).
The proper procedure to remedy an illegal sentence is to vacate the sentence and to resentence the defendant, not to dismiss the indictment or the complaint, and not to grant a new trial. See Commonwealth v. Coleman, 390 Mass. 797, 804 (1984); Commonwealth v. Woodward, 427 Mass. 659, 683 (1998). See also Smith, Criminal Practice and Procedure § 41.11 (3d ed.2007). It is therefore appropriate and judicially efficient that we presume that CPSL is constitutional until the Supreme Judicial Court issues its decision in Commonwealth v. Cole.
At that time, if necessary, the defendant would file a motion under Mass.R.Crim.P. 30(a). The defendant's sentence would be vacated and he would be resentenced by, if possible, the original sentencing judge.
While we could vacate an illegal or unconstitutional sentence, we nevertheless then would remand the matter to the trial court for resentencing of the defendant.
This disposition is without prejudice to the defendant's ability to raise the issue again.
As for the global positioning system (GPS) monitoring, the Commonwealth concedes that imposition of GPS monitoring was an ex post facto violation because the defendant committed his crime before the passage of St.2006, c. 303, § 7. See Doe v. Chairperson of the Mass. Parole Bd., 454 Mass. 1018, 1019 (2009). See also Commonwealth v. Cory, 454 Mass. 559, 563–573 (2009). We agree with the Commonwealth, however, that the defendant does not have a remedy before us at this time. Because we are reviewing only the indictments and the plea, we are without the power to modify the terms of the CPSL, which were imposed by the parole board, not the sentencing judge. The defendant's remedy for an ex post facto violation under Doe lies with the parole board.
Order denying motion to vacate sentence affirmed.