Opinion
No. 11–P–1513.
2013-03-15
COMMONWEALTH v. Jay PROCOPIO.
By the Court (GRASSO, TRAINOR & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order denying his motion for a new trial that sought to withdraw his guilty plea to murder in the second degree. Because the transcript of the defendant's guilty plea fails to establish that his plea was intelligent, we must reverse the order denying the defendant's motion.
1. Background. On March 26, 1992, a Middlesex County grand jury indicted the defendant for murder in connection with the death of his five month old son. On April 22, 1993, the defendant pleaded guilty to so much of the indictment as constituted murder in the second degree. After a colloquy, a Superior Court judge accepted the defendant's plea and sentenced him to the required mandatory sentence of life imprisonment. As pertinent here, on April 20, 2011, the defendant moved to withdraw his guilty plea. He alleged that (1) his plea was involuntary because of alleged mental impairments and because his family, his attorney, and the judge pressured him to plead guilty, (2) his plea was not intelligent because he denied that he intended to harm his son and insisted the child's death was an accident, and (3) his plea attorney rendered ineffective assistance of counsel. In support of his motion, the defendant filed affidavits—his own and his mother's—and a transcript of the plea colloquy. In opposition, the Commonwealth filed an affidavit from the defendant's plea counsel. Because the plea judge had retired, a different judge heard and denied the defendant's motion without an evidentiary hearing. In her memorandum of decision, the judge carefully considered and rejected the defendant's claims that he lacked the competence to enter his guilty plea, pleaded guilty involuntarily as a result of coercion, and received ineffective assistance of counsel. Although we infer that the judge rejected the claim that the plea was not intelligent, the memorandum did not specifically address that contention.
2. Discussion. For substantially the reasons set forth in the judge's memorandum of decision, we agree that the defendant's claims that he lacked competence, that his plea was involuntary, and that his attorney rendered ineffective assistance lack merit.
The defendant's claim that his plea was not intelligent stands on different footing. After careful review of the plea colloquy transcript, we conclude that the defendant's guilty plea fails to meet the constitutional requisite of intelligence, and that the plea judge erred in accepting the guilty plea. See Boykin v. Alabama, 395 U.S. 238, 242 (1969); Commonwealth v. Hiskin, 68 Mass.App.Ct. 633, 637 (2007).
“A defendant's plea is intelligent when made with understanding of the nature of the charges (understanding of the law in relation to the facts) and the consequences of his plea (the legal consequences and constitutional rights he foregoes by pleading guilty rather than proceeding to trial)....” Commonwealth v. Hiskin, supra at 638. We need not linger on whether the defendant understood the legal consequences and constitutional rights foregone by his plea, as the transcript establishes that he did. The same is not true with respect to the defendant's understanding of, and admission to, the crime to which he pleaded guilty.
The intelligence of a guilty plea may be established “(1) by the judge explaining to the defendant the elements of the crime; (2) by counsel's representation that [he] has explained to the defendant the elements he admits by his plea; or, (3) by the defendant's stated admission to facts recited during the colloquy which constitute the unexplained elements.” Commonwealth v. Correa, 43 Mass.App.Ct. 714, 717 (1997). Measured against that standard, the defendant's plea falls well below what is constitutionally required for a guilty plea to second degree murder to be intelligent . As part of the colloquy, the prosecutor recited the factual basis of proof that the defendant killed his infant child with malice aforethought under the second or third prong of malice. See Commonwealth v. Azar, 435 Mass. 675, 681–682 (2002) (defining the three prongs of malice). The detailed factual recitation included medical and investigative reports and admissions by the defendant that he unlawfully killed his infant son by throwing the child to the ground to make the child stop crying. If admitted by the defendant, the factual recitation sufficed to establish the intelligence of his plea to murder in the second degree.
The plea judge did not explain the elements of second degree murder to the defendant. Consequently, the intelligence of the defendant's plea must arise, if at all, by virtue of counsel's explaining to the defendant the elements that he was admitting by his plea or by the defendant's admission to the facts that constitute the unexplained elements. See Commonwealth v. Correa, supra at 717.
Previously, a judge had denied the defendant's motion to suppress his statements to the police. The denial of that motion, and the Commonwealth's unwillingness to reduce the charge to manslaughter, served in part as the basis for counsel's recommendation that the defendant plead guilty to second degree murder (with possibility of parole) rather than risk conviction of first degree murder.
In responses to the judge's questions, however, the defendant did not admit that he intended to (1) kill the child, (2) cause him grievous bodily harm, or even (3) commit an act that, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood of death. See Commonwealth v. Azar, supra. Rather, in his answers to multiple questions, the defendant responded, “I did not throw him to the floor. I swear to God,” “I was just playing, throwing him up in the air,” “I didn't throw him; he fell. He fell out of my hands,” “[He fell] by accident,” “[By accident] I swear to God today,” “I didn't think that would happen like that.” Far from acknowledging actions that constituted murder in the second degree, the defendant's responses amounted to a claim of accident. See Commonwealth v. Russell, 439 Mass. 340, 343 (2003). The judge should have rejected the plea, and let the indictment stand for trial.
Nor would the defendant even admit that what the prosecutor recited regarding how the child died was true. While admitting he caused the child's death, he stood fast that “I didn't mean it,” “I didn't do it intentionally.”
Although the defendant acknowledged that his attorney had explained all the elements of first degree murder (for which he was indicted), and second degree murder (to which he offered a plea), and defense counsel asserted he had explained “these things” to the defendant, in the face of the defendant's repeated insistence that what occurred was an accident, the second basis of intelligence is not made out.
Defense counsel represented to the judge at sidebar that he had “gone over it with [the defendant] many, many times,” and “[although] [h]e definitely is slow ... he does understand these things.”
The order denying the defendant's motion for a new trial and to withdraw his guilty plea is vacated. A new order shall enter allowing the defendant's motion. The judgment is reversed and the finding is set aside. The case is remanded to the Superior Court for further proceedings on the indictment.
So ordered.