Opinion
18-P-1442
01-23-2020
COMMONWEALTH v. Aisha S. POUNCIE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In September 2017, the defendant pleaded guilty to several offenses and was sentenced by a judge of the Dorchester Division of the Boston Municipal Court Department to serve concurrent terms of incarceration in a house of correction, suspended, with two years of probation. Global positioning satellite (GPS) monitoring was among the conditions of probation. The defendant allegedly violated her probation the next month and was brought back before the same judge. Thereafter, the defendant appeared before the plea judge on a monthly basis to litigate the probation violation and an emergency motion she filed to remove GPS monitoring as a condition of probation. On June 1, 2018, the plea judge denied the motion to remove the GPS monitoring condition. One month later, the defendant moved to withdraw her guilty pleas, and for a new trial. See Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). The plea judge, who had a "clear memory of these pleas," found "no merit to the defendant's arguments that [they] were not voluntary and knowing." He denied the motion by margin endorsement, and the defendant appeals. We affirm.
The record does not identify the alleged violation.
Background. The charges in this case arise out of the defendant's relationship with Brian Smith, the father of two of her children. In December 2016, the police responded to a report of an altercation involving the defendant occurring at Smith's residence in the Dorchester section of Boston. The defendant refused to be handcuffed and kicked an arresting officer, leading to the issuance of a complaint (1607CR4720) charging the defendant with resisting arrest and assault and battery on a police officer.
A pseudonym.
In May 2017, a second complaint (1707CR002206) issued charging the defendant with committing an assault and battery on Smith's mother by scratching her in the face. After this incident, Smith obtained an abuse prevention order requiring the defendant to stay away from him and his residence. In June 2017, the defendant was charged in a third complaint (1707CR002303) with violating that abuse prevention order and committing an assault and battery by means of a dangerous weapon on a woman whom the defendant hit over the head with a bottle after the woman and Smith returned to his residence from a night out together. Less than two weeks later, on July 9, 2017, Smith called the police to report that the defendant "had been sitting outside of his residence in a blue colored sedan for several minutes and then left." The next day, a fourth complaint (1707CR002499) issued charging the defendant with violating the abuse prevention order. Finally, on September 27, 2017, a fifth complaint (1707CR003559) issued charging the defendant with violating the abuse prevention order by throwing rocks and other items at a window of Smith's residence. The defendant "stated when asked [by officers responding to this incident] that she had not been to [Smith's residence] in months because of the restraining order."
On September 28, 2017, the defendant signed tender of plea or admission and waiver of rights sheets (green sheets) for all five complaints. A change of plea hearing then took place, at which the plea judge held up the green sheets and asked the defendant, "With respect to docket 16CR4720, 172206, 172303, 172499 and 173559, are these the tenders that you would like the [c]ourt to adopt?" The defendant answered, "Yes, sir," and identified her signature on the forms. The prosecutor then recited the above-enumerated facts in support of each complaint. The defendant said "[y]es" when the judge asked her whether she heard the facts "that underlie all four of those dockets." The judge then stated that he was "not asking you if you agree with everything the Commonwealth has just recited but do you agree if the Commonwealth were to prove those facts at trial, that a judge or jury of the Commonwealth of Massachusetts could find you guilty of the crimes charged in docket 17CR2206, 17CR2303, 17CR2499 and 17CR3559?" The defendant responded, "Yes." Plea counsel confirmed that he had discussed with the defendant "the elements of the charges underlying all four of those dockets, the maximum penalties and collateral consequences," and the defendant confirmed that she had had enough time to discuss her decision with counsel and was satisfied with his representation. The defendant also stated she understood that, "by pleading guilty or admitting to sufficient facts," she was waiving the right to have the Commonwealth prove the facts beyond a reasonable doubt, at a trial before a judge or jury, wherein the defendant would have the right to cross-examine witnesses and present evidence. The judge accepted the tenders after finding "that the pleas in all five dockets are voluntarily, knowingly and intelligently entered; that there is a factual basis for the crimes charged in those complaints, and that [the defendant] understands the consequences of her admissions and/or her pleas." He then considered the parties' disparate sentencing recommendations.
We presume that we have not been provided with a copy of complaint 1607CR4720, or of the green sheet associated with that complaint, because the defendant does not challenge her admission to sufficient facts to support findings of guilty of resisting arrest and assault and battery on a police officer.
The prosecutor separately recited the facts in support of complaint 1607CR4720, and the judge separately inquired of the defendant with respect to those facts.
The defendant offered to plead guilty to the charges in three of the complaints in exchange for concurrent six-month sentences to a house of correction, suspended for eighteen months of probation. The fourth complaint would be continued without a finding. The Commonwealth recommended that the defendant plead guilty to the charges contained in each complaint and receive concurrent nine-month sentences to a house of correction, with two months to serve and the balance suspended, with two years of probation that included GPS monitoring. Ultimately, the judge "propose[d] the following disposition applicable to all of" the complaints, except the one that charged resisting arrest and assault and battery on a police officer (1607CR4720), which would be continued without a finding: the defendant would be found guilty and sentenced to serve eighteen months of incarceration in a house of correction, suspended, with two years of probation. The judge gave defense counsel time to review the proposed disposition with the defendant; thereafter, "on docket 2017-2206, 2017-2303, 2017-2499 and 2017-3559, after an admission the [c]ourt f[ound] sufficient facts on all matters," found the defendant guilty, and imposed concurrent eighteen-month sentences to a house of correction, suspended, with two years of probation with conditions that included GPS monitoring. After the clerk announced the sentences, in an exchange with the defendant, the judge further explained the terms of the sentences.
As previously stated, the defendant appeared before the plea judge the next month and each month thereafter for nearly one year to address her compliance with the conditions of probation. It was not until her motion to remove GPS monitoring as a condition of probation was denied that the defendant raised a challenge to her guilty pleas. In her rule 30 (b) motion, the defendant argued that her pleas must be vacated because (1) she did not admit her guilt and the judge never asked her if the facts recited by the Commonwealth were true, (2) the record does not establish that she understood the elements of the charges, (3) the pleas to violation of an abuse prevention order in June and July, 2017, lacked a factual basis because the prosecutor's recitation did not establish that a valid order was in place, and (4) the plea judge failed to advise her of the maximum possible sentences or that she could withdraw her pleas if he exceeded her sentencing request, as required by Mass. R. Crim. P. 12, as amended, 482 Mass. 1499 (2019). The motion was supported by an affidavit from appellate counsel, the transcript of the plea colloquy, and copies of the green sheets signed by the defendant, plea counsel, and the judge. Neither plea counsel nor the defendant filed an affidavit.
"After hearing and argument," the plea judge concluded that the defendant had not satisfied her burden of showing that justice was not done. In particular, the judge found the absence of an affidavit from plea counsel "telling."
Standard of review. A rule 30 (b) motion should be allowed only "where it appears that justice may not have been done" (quotation and citation omitted). Commonwealth v. Lopez, 426 Mass. 657, 662 (1998). Judges are to apply the rule 30 (b) standard "rigorously, and should only grant a postsentence motion to withdraw a plea if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth." Commonwealth v. Wallace, 92 Mass. App. Ct. 7, 10 (2017), quoting Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992). We review the denial of a motion to withdraw a guilty plea to determine whether there has been a significant error of law or other abuse of discretion, bearing in mind that the plea judge is the final arbiter on matters of credibility, and his findings are entitled to "[p]articular deference." Commonwealth v. Scott, 467 Mass. 336, 344 (2014).
Discussion. Before accepting a guilty plea, the judge must be satisfied that the plea is intelligent, voluntary, and supported by an adequate factual basis. See Mass. R. Crim. P. 12 (c) (5) ; Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 634 (2007). See also Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015) (factual basis requirement is distinct from voluntary and intelligent requirement). Voluntariness is not at issue in this appeal. A plea is intelligent when it is tendered with knowledge of the elements of the charges and the procedural protections waived by entry of a guilty plea. Hiskin, supra at 638.
A conviction of violating an abuse prevention order requires proof "(1) that a court issued an abuse prevention order; (2) that the order was in effect on the date when its violation allegedly occurred; (3) that the defendant knew the relevant terms of the order were in effect ...; and (4) that the defendant violated a term of the order." Commonwealth v. Shea, 467 Mass. 788, 794 (2014). At the change of plea hearing, the prosecutor's narrative included that Smith had obtained an abuse prevention order against the defendant in May 2017, the defendant was charged with violating that order in June and July, by being at Smith's residence, and when the defendant was stopped by police in September for throwing rocks at Smith's window, she stated that she had not been to his residence in "months" because of the "restraining order." From this, the judge could infer that the defendant knew for "months," including in June and July, of the existence and terms of the order. We agree with the plea judge that there was a sufficient factual basis for those charges and "no danger" that the defendant pleaded guilty to "conduct not known to be violative of a court order." Commonwealth v. Delaney, 425 Mass. 587, 593 (1997), cert. denied, 522 U.S. 1058 (1998). See Armstrong, 88 Mass. App. Ct. at 758 (judge accepting plea only required to determine whether evidence and reasonable inferences which may be drawn therefrom support charge, not whether defendant is actually guilty beyond reasonable doubt).
We agree with the Commonwealth that the prosecutor's mistaken reference to June 2016 was cured by the remainder of the recitation. The plea judge also referred to the complaint by docket number; the date of offense listed on that docket is June 24, 2017.
We also agree with the judge's conclusion that the defendant's pleas were intelligent. "Defense counsel stated he had discussed with the defendant the nature of the charges," Commonwealth v. Wentworth, 482 Mass. 664, 679 (2019) ; "the prosecutor recited a lengthy narrative of the evidence against the defendant, which encompassed all of the elements the Commonwealth was required to prove," Commonwealth v. DeCologero, 49 Mass. App. Ct. 93, 97 (2000) ; the defendant listened to and acknowledged those facts in response to the judge's questions, see Hiskin, 68 Mass. App. Ct. at 639-640 ; and the defendant signed the green sheets, see Commonwealth v. Furr, 454 Mass. 101, 109 (2009) (signed waiver properly considered to support finding that plea was intelligent). See Hiskin, supra at 639, quoting Commonwealth v. Correa, 43 Mass. App. Ct. 714, 717 (1997) (intelligence requirement can be satisfied by defense counsel's explanation of elements of crimes charged or "by the defendant's stated admission to facts recited during the colloquy which constitute the unexplained elements").
We are not persuaded by the defendant's argument that plea counsel's "discussion" with her of the elements of the offenses "indicate[s] something far less educational and informative" than "explaining" them. Even if we were, counsel's discussion rather than explanation would not make a difference in light of the prosecutor's recitation and the defendant's sworn responses.
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The judge's failure also to advise the defendant of the maximum sentences on the charges, or that she could withdraw her plea if he exceeded her sentencing recommendation, does not change this result. "A slip in the protocol prescribed by rule 12 does not entitle a defendant to withdraw a guilty plea if it ‘did not significantly affect the substance of the particular requirement’ " (footnote omitted), Commonwealth v. Glines, 40 Mass. App. Ct. 95, 99 (1996), quoting Commonwealth v. Nolan, 19 Mass. App. Ct. 491, 496 (1985), or where, as here, the defendant does not claim that "compliance with rule 12 would have made a difference" in her decision to plead guilty. Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 580 (2001). Plea counsel explained the penalties and collateral consequences of pleading guilty to the defendant before she did so, and the record establishes that the defendant "understood the consequences of the sentence and voluntarily embraced that sentence" after being given time to discuss it with her counsel. Glines, supra at 98. Thus, we are satisfied that the judge's omissions did not affect the substance of the requirement that the defendant understand the consequences of her pleas.
It is clear to us that the plea judge conducted a "real probe of the defendant's mind" before finding that her pleas were intelligent. Hiskin, 68 Mass. App. Ct. at 638, quoting Commonwealth v. Foster, 368 Mass. 100, 107 (1975). In evaluating her later claim that they were not, the judge was entitled to rely on the defendant's sworn responses to his "informed questions made in the solemnity of [the] formal plea proceeding" which the defendant initiated by her tenders. Hiskin, supra. See Commonwealth v. Williams, 71 Mass. App. Ct. 348, 355 (2008) ("The plea proceeding is not some frivolous exercise, where words have no meaning and answers are of no consequence"). That the defendant did not say "I plead guilty" or "guilty" after each charge is inconsequential on this record, where "[t]he defendant clearly understood from the outset of the hearing that [s]he was pleading guilty to multiple criminal charges" and admitting to sufficient facts to support guilty findings on others. Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 357 (2010). Based on all that is before us, we see no error and no abuse of discretion in the judge's decision to deny the defendant's rule 30 (b) motion.
Order denying motion to withdraw guilty pleas and for new trial affirmed.