Opinion
No. 15–P–1410.
10-19-2016
COMMONWEALTH v. David M. MOWLES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On April 12, 1991, the defendant pleaded guilty to two counts of indecent assault and battery on a child under fourteen, G.L. c. 265, § 13B. Approximately twenty-three years later, he moved for a new trial and sought to withdraw his guilty pleas, claiming that they were not knowingly and intelligently tendered because he was unaware that he would be required to register as a sex offender, pursuant to the Sex Offender Registration and Community Notification Act, G.L. c. 6, §§ 178C –178P (act). Following a hearing, a District Court judge denied the motion in a well-reasoned written memorandum. This appeal followed. We affirm.
In 1996, five years after the defendant pleaded guilty, the Legislature enacted the act. See St.1996, c. 239, § 1. In 1999, the act was amended to require all persons convicted of a sex offense, including those convicted prior to enactment, to register with the Sex Offender Registry Board (SORB). See St.1999, c. 74, § 2.
Discussion. A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Scott, 467 Mass. 336, 344 (2014). Such a motion may be granted “if it appears that justice may not have been done.” Mass.R.Crim.P. 30(b). “The motion is addressed to the sound discretion of the judge,” whose disposition “will not be reversed ... 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) (citation omitted).
A plea of guilty must be entered intelligently and voluntarily. Commonwealth v. Morrow, 363 Mass. 601, 603 (1973). Here, the defendant does not challenge the adequacy of the plea colloquy. Rather, he claims that the subsequent enactment of the act renders his guilty pleas unconstitutional because he was unaware that he would be obligated to register as a sex offender in the future. “The constitutional adequacy of a plea, however, does not require that a defendant be advised of consequences that are contingent or collateral to the plea.” Commonwealth v. Albert A., 49 Mass.App.Ct. 269, 271 (2000). It is well established that sex offender registration is a collateral consequence of a guilty plea to a sex offense. Opinion of the Justices, 423 Mass. 1201, 1231 (1996). Accordingly, we discern no abuse of discretion in the denial of the motion for a new trial on that basis.
The defendant further claims that the contract principle of mutual mistake renders the guilty pleas unconstitutional. In order to void a contract, “[t]he parties' mutual mistake of fact or law ‘must be so substantial and fundamental as to defeat the object of the parties. A mutual mistake of material fact as to a basic assumption may result in rescission when the mistake upsets the very basis of the contract.’ “ Browning–Ferris Indus., Inc. v. Casella Waste Mgmt. of Mass., Inc., 79 Mass.App.Ct. 300, 314 n. 9 (2011), quoting from 27 Williston, Contracts § 70–34, at 316 (4th ed.2003). Even assuming that the principle of mutual mistake is applicable in this context, the argument is not persuasive. Nothing in the record suggests that sex offender registration was a material assumption upon which the guilty plea was based. Rather, the registration requirement was the product of a change in the law that postdated the guilty plea. It was a collateral consequence wholly unanticipated by the parties. Therefore, we agree with the judge's conclusion that “[t]here is no evidence that all parties shared concern over something that was collateral to the entry of the defendant's pleas.” The denial of the motion for a new trial was not an abuse of discretion.
Order denying motion for new trial affirmed.