Opinion
20-P-1163
04-04-2022
COMMONWEALTH v. Davaun R. OSWALD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On March 14, 2019, the defendant pleaded guilty to possession of a Class D substance with intent to distribute, subsequent offense. On November 4, 2019, he filed a motion for a new trial, see Mass R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), seeking to withdraw the guilty plea, contending that there was an insufficient factual basis for the plea and that his attorney was ineffective. A judge of the District Court denied the motion without a hearing. We affirm.
Background. At the plea hearing, the prosecutor summarized the facts from the New Bedford police report as follows:
"On January 29th of 2018, th[e] Defendant was observed walking on County Street and Sawyer Street in the City of New Bedford. He was believed to have active warrants. When the police confirmed that, through the warrant management system, they turned their car around and observed [the defendant] running on David Court in the City of New Bedford. They were able to -- They were unable to locate the Defendant at the time but they were able to locate the backpack he was carrying on the south side of David Court. The backpack contained eight [plastic bags] of marijuana, a total of 151.6 grams, a digital scale and one box of empty plastic bags. I do have a drug cert in this, which is a Class -- marijuana is a Class D substance.... And [the defendant] has a prior guilty disposition of distribution of Class D on his Board of Probation record."
Thereafter the judge conducted a colloquy with the defendant, and then accepted the plea. The judge found that there was a sufficient factual basis for the plea, and that it was made knowingly, willingly, and voluntarily. Approximately eight months later, the defendant filed a motion for a new trial. The motion judge, who was also the plea judge, denied the motion without an evidentiary hearing. This appeal followed.
Discussion. "A motion ... pursuant to Mass. R. Crim. P. 30 (b) is the proper vehicle by which to seek to vacate a guilty plea.... Under Mass. R. Crim. P. 30 (b), a judge may grant a motion for a new trial any time it appears that justice may not have been done." Commonwealth v. Williams, 89 Mass. App. Ct. 383, 387 (2016), quoting Commonwealth v. Scott, 467 Mass. 336, 344 (2014). We review the denial of a rule 30 (b) motion for a significant error of law or abuse of discretion. See Commonwealth v. Lastowski, 478 Mass. 572, 575 (2018), quoting Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016). Substantial deference is warranted where, as here, the motion judge was also the plea judge. See Commonwealth v. Lys, 481 Mass. 1, 4 (2018), citing Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016). The defendant bears the burden of proof on a motion for a new trial. See Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 44 (2015).
1. The plea. "A judge may not accept a guilty plea ‘unless there are sufficient facts on the record to establish each element of the offense’ " (citation omitted). Commonwealth v. Hart, 467 Mass. 322, 325 (2014). The defendant contends that the judge erred in denying his motion because the prosecutor failed to set forth facts proving the element of intent to distribute. "Intent is a factual matter that may be proved by circumstantial evidence." Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 427 (1985). Here, the judge heard the following evidence relevant to the element of intent: immediately after seeing the defendant carrying a backpack before fleeing on January 29, 2018, the police located the backpack along the defendant's path of flight, and the backpack contained eight individual plastic bags of marijuana weighing 151.6 grams, a box of empty plastic bags, and a digital scale. There was no evidence that the backpack contained paraphernalia associated with drug use. The totality of this evidence indicates an intent to distribute rather than personally use the marijuana in the backpack, and therefore the defendant's claim fails. See Commonwealth v. Richardson, 479 Mass. 344, 362 (2018) (digital pocket scale sufficed to show intent to distribute); Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 413 (2013) (evidence of plastic bags and digital scale sufficient to prove intent to distribute); Commonwealth v. Martin, 48 Mass. App. Ct. 391, 392-393 (1999) (individual packaging, combined with general circumstances, sufficient to infer intent to distribute).
To the extent that the defendant contends in his brief that "the factual basis for the plea [did] not contain information to support that the backpack belonged to [the defendant]," we note that this assertion is not supported by citation to the record or legal authority as required by Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). In any event, the assertion is belied by the summary of the facts, including that the police recognized the abandoned backpack as the one that they saw the defendant carrying.
The defendant's argument that one ounce of the marijuana should have been excluded from the total weight calculation pursuant to the personal use statute is misplaced. Even if 4.35 ounces of marijuana is not considered substantial, it still exceeds the two ounce statutory threshold. See G. L. c. 94C, § 32L.
To the extent that the defendant claims his acknowledgment of the facts recited during the plea colloquy cannot support an inference that the plea was intelligently made because those facts were insufficient to prove the defendant's intent to distribute, we are not persuaded. "[A]n intelligent admission of guilt [requires] (1) an explanation by the judge of the elements of the crime; (2) a representation that counsel has explained to the defendant the elements [he] admits by [his] plea; or (3) the defendant's admission to facts that constitute the unexplained elements." Commonwealth v. Hunt, 73 Mass. App. Ct. 616, 621 (2009). Here, plea counsel represented to the judge that she had discussed the elements of the charge with the defendant, and the defendant agreed that the facts read by the prosecutor were true. Nothing more was required.
The defendant's reliance on Commonwealth v. Andrews, 49 Mass. App. Ct. 201, 203-204 (2000), is misplaced, as here the elements of the charged offense were explained to the defendant, and the facts supported an inference of intent to distribute.
2. Ineffective assistance of counsel. The defendant argues that plea counsel's failure to file a motion to dismiss the complaint for lack of probable cause constituted the ineffective assistance of counsel. The defendant "bears the burden of showing that his attorney's performance fell measurably below that which might be expected from an ordinary fallible lawyer, and that he suffered prejudice because of his attorney's unprofessional errors" (quotations and citation omitted). Commonwealth v. Al Kenani, 100 Mass. App. Ct. 288, 292 (2021). "We review to determine whether [plea] counsel's failure to file a motion to dismiss the [complaint] was ineffective assistance and deprived the defendant of an otherwise available substantial defense." Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 173 (2001), citing Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "That, in turn, requires determination of whether a motion to dismiss the [complaint] would have been allowed." Ortiz, supra at 173-174.
The defendant contends that his attorney should have filed a motion to dismiss the complaint because it was not supported by probable cause on the element of intent to distribute. "Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction" (citation and quotation omitted). Commonwealth v. Reyes, 98 Mass. App. Ct. 797, 803 (2020). Here, a motion to dismiss would have been futile, as the complaint application established that the defendant's backpack contained eight plastic bags of marijuana with a total weight of 151.6 grams, a digital scale, a box of empty plastic bags, and no smoking paraphernalia. Contrast Commonwealth v. Humberto H., 466 Mass. 562, 567 (2013) (no probable cause of intent to distribute where no scale, cell phone, pager, or empty plastic bags recovered).
3. Evidentiary hearing. Lastly, the defendant argues that the judge abused his discretion because he did not hold an evidentiary hearing before denying the rule 30 (b) motion. A judge may rule on a motion for a new trial without an evidentiary hearing "if no substantial issue is raised by the motion or affidavits." Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. DiBenedetto, 458 Mass. 657, 664 (2011). " ‘Although the motions and supporting materials filed by a defendant need not prove the issue raised therein, they must at least contain sufficient credible information to cast doubt on the issue’ in order to create a substantial issue." Commonwealth v. Barry, 481 Mass. 388, 401 (2019), quoting Commonwealth v. Denis, 442 Mass. 617, 629 (2004). Here, the defendant failed to raise a substantial issue and therefore the judge did not abuse his discretion in deciding the motion without conducting an evidentiary hearing.
The defendant's brief makes fleeting references to the judge's lack of findings of fact and conclusions of law. See Mass. R. A. P. 16 (a) (9) (A). The absence of findings is not fatal where, as here, "the ultimate conclusion is clearly evident from the record, ... or where we are satisfied that on review of the whole case manifest injustice would [not] result" (quotations and citations omitted). Commonwealth v. Torres, 469 Mass. 398, 403 (2014).
Order denying motion for new trial affirmed.