Opinion
12-P-1433
02-18-2014
13-P-71 COMMONWEALTH v. DWAYNE PERSON(and a companion case).
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
The defendant, Dwayne Person, also known as Drew Person, pleaded guilty in the West Roxbury Division of the District Court in 1999 to possession of a class B controlled substance with intent to distribute. The defendant also, under the name Wayne Persons, pleaded guilty in the Boston Municipal Court (BMC) in 1991 to the same charge arising from a different, earlier incident. Much later, after facing the possibility of an enhanced mandatory minimum sentence in United States District Court, the defendant moved to vacate both guilty pleas, citing Padilla v. Kentucky, 130 S. Ct. 1473 (2010), and Commonwealth v. Clarke, 460 Mass. 30 (2011), and arguing that the court should extend the holding in those cases to require that defendants be informed of other potential collateral consequences of guilty pleas besides possible immigration consequences, including possible sentence enhancements for subsequent offenses. The defendant also alleged ineffective assistance of counsel, asserting that his lawyer never informed him of the potential for Federal sentencing enhancement as a consequence of his guilty plea. The motions were denied in each court. The defendant now appeals, arguing that his pleas were not knowing and intelligent, because the colloquies were defective; in particular, he complains, as he did in the district and municipal courts, that he was not advised by counsel, or the judges, that he could face enhanced Federal mandatory minimum sentencing as a result of his guilty pleas. He requests that this court adopt what he labels a 'natural extension' of Commonwealth v. Clarke to include in the standard colloquy a warning of possible sentencing enhancements that he claims are analogous to the immigration consequences at issue in Padilla and Clarke. The defendant also argues that, because his attorney failed to provide him with this collateral consequence information before he pleaded guilty, he received ineffective assistance.
In that case, No. 12-P-1433 (the West Roxbury case), additional charges of trafficking in cocaine, possession of a class B controlled substance within 1,000 feet of a school zone and possession of a class A substance with intent to distribute, subsequent offense, were dismissed at the time of the plea.
In the second case, No. 13-P-71 (the BMC case), an additional school zone charge also was dismissed.
On December 23, 2010, a Federal grand jury indicted the defendant, charging him with conspiracy to distribute more than 500 grams of cocaine and more than 280 grams of cocaine base, possession with intent to distribute, and unlawful use of a communications facility. By way of a Federal information dated December 23, 2011, the defendant was notified of the possibility of an enhanced penalty for the pending charges based on one of his prior State court drug convictions, the West Roxbury conviction. On October 9, 2012, the defendant pleaded guilty to all Federal charges; as part of his plea agreement he was sentenced only to the Federal minimum with no enhancement.
West Roxbury case. In denying the defendant's motion to vacate his plea, the judge, who was also the plea judge, stated explicitly that it was her 'custom and practice to provide an extensive colloquy with a defendant that complies with Rule 12 of the Massachusetts Rules of Criminal Procedure.' Moreover, the plea that entered did not subject him to an enhanced sentence because of this conviction. The defendant counters, however, that his position in plea negotiations was weakened by the prior charge and that he was influenced to plead guilty to the Federal charges rather than to go to trial and risk a possible twenty-year sentence.
BMC case. The defendant's argument regarding the BMC case is identical, although factually weaker. In denying the defendant's motion to vacate his plea, the BMC judge stated that, although he did not believe that his colloquy practice in 1991 had been adequate, he was satisfied that a thorough colloquy would have made no difference to the defendant, given the benefits to the defendant of pleading guilty (a suspended sentence and dismissal of the school zone charge with its mandatory minimum sentence). The judge also ruled that he was unwilling to extend the holdings in Clarke and Padilla to apply to collateral consequences other than those involving immigration.
Significantly, the defendant's 1991 BMC conviction was not cited in the Federal information as a possible basis for an enhanced Federal sentence. Nevertheless, he insists that he is adversely affected by this conviction because he could receive an enhanced sentence in the future if he is convicted of yet another offense.
Discussion. '[A] motion to vacate or withdraw a guilty plea is properly treated as a motion for a new trial.' Commonwealth v. Casimir, 68 Mass. App. Ct. 257, 258 n.3 (2007). When a defendant appeals the denial of a motion under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), we review 'only to determine whether there has been a significant error of law or other abuse of discretion.' Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 350 (2009), quoting from Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006).
'[T]o be voluntary and intelligent, the plea must be tendered with a real understanding of its consequences.' Commonwealth v. Murphy, 73 Mass. App. Ct. 57, 61 (2008).However, '[i]t is settled in Massachusetts that a defendant need not be advised of contingent or collateral consequences [apart from those relating to immigration].' Commonwealth v. Hason, 27 Mass. App. Ct. 840, 843 (1989). See Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 55 n.18 (1997) ('We observe that even had Pingaro received the most copious guilty plea colloquy mandated by the applicable authorities, he would not have had to be informed of the contingent or collateral Federal consequences of his plea [except for the deportation warning mandated by G. L. c. 278, § 29D]' [citation omitted]). See also Commonwealth v. Shindell, 63 Mass. App. Ct. 503, 505 (2005). To the extent that the defendant asks that we overrule this clearly controlling precedent, we decline to do so.
Effective assistance. In addition, having in mind all of the circumstances of this case, even assuming the credibility of the defendant's affidavit reciting that neither counsel informed him at the time of his plea of possible sentencing enhancements for crimes to be committed in the future, we are not prepared to rule that such conduct constituted 'serious incompetency, inefficiency, or inattention . . . -- behavior . . . falling measurably below that which might be expected from an ordinary fallible lawyer [or that] it has likely deprived the defendant of an otherwise available, substantial ground of defence.'
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
We see no error and certainly no substantial risk of a miscarriage of justice in the denial of the defendant's motions to vacate his guilty pleas.
Effective assistance. In addition, having in mind all of the circumstances of this case, even assuming the credibility of the defendant's affidavit reciting that neither counsel informed him at the time of his plea of possible sentencing enhancements for crimes to be committed in the future, we are not prepared to rule that such conduct constituted 'serious incompetency, inefficiency, or inattention . . . -- behavior . . . falling measurably below that which might be expected from an ordinary fallible lawyer [or that] it has likely deprived the defendant of an otherwise available, substantial ground of defence.'
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
We see no error and certainly no substantial risk of a miscarriage of justice in the denial of the defendant's motions to vacate his guilty pleas.
Orders denying motions to vacate guilty pleas affirmed.
By the Court (Hanlon, Brown & Sullivan, JJ.),