Opinion
19-P-32
10-24-2019
COMMONWEALTH v. Antoine RISE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Antoine Rise, appeals from the order denying his motion to withdraw his guilty plea entered in 2000. He argues that there was an insufficient factual basis to support the plea under Mass. R. Crim. P. 12 (c) (5), as amended, 482 Mass. 1499 (2019). We affirm.
Background. We recite facts from the police report. During the evening of January 30, 2000, the defendant was observed by two police officers exiting a house in the Dorchester section of Boston "known for illegal drug sales." When the defendant noticed the officers, he reentered the house and slowly closed the door. The officers repositioned themselves and watched the defendant exit the house a second time and begin walking towards a waiting car in the street. As the defendant again appeared to notice the presence of police, he walked past the waiting car. The officers approached him by foot. When the defendant was asked whether he had any weapons on his person, he replied, "[N]o, but I have a bag of weed," and pointed to his coat pocket. The officers found a knotted plastic sandwich bag of marijuana in his left coat pocket and two more small zip lock plastic bags with marijuana in his right coat pocket. When the officers discovered the marijuana, the defendant stated, "That's for Superbowl [sic ]." The officers also discovered eleven individually-wrapped bags of "crack" cocaine contained in a plastic bag found in the pocket of his shorts. He had twenty-five dollars on his person.
The police report provides the only source to evaluate the defendant's claim. A transcript of the plea colloquy was not included in the record, and the defendant avers that the audio recording from that proceeding, also absent, no longer exists.
The defendant was charged with possession of marijuana, a class D substance, under G. L. c. 94C, § 34 ; possession with intent to distribute a class B substance, to wit cocaine, under G. L. c. 94C, § 32A ; and a drug violation near a school or park under G. L. c. 94C, § 32J. The defendant pleaded guilty to the possession with intent to distribute charge on May 11, 2000, and the other charges were dismissed. The defendant's motion to withdraw his guilty plea was filed some seventeen years later on August 24, 2017. The motion was denied by a judge other than the plea judge after a nonevidentiary hearing held over two separate days. The defendant timely appealed.
Discussion. A motion to withdraw a guilty plea, which is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), may be allowed if "it appears that justice may not have been done." Commonwealth v. Scott, 467 Mass. 336, 344 (2014). We review the denial of a motion for new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Additionally, where "a contemporaneous record of the plea proceedings no longer exists due to the passage of time," as here, a court will presume the proceedings were valid and not constitutionally defective, a concept known as the presumption of regularity. Commonwealth v. Cartagena, 466 Mass. 1021, 1021-1022 (2013). The defendant must produce credible and reliable evidence to rebut the presumption. See Commonwealth v. Hoyle, 67 Mass. App. Ct. 10, 14-15 (2006) ("This presumption of regularity, normally afforded collateral review of proceedings in which the record has been lost or destroyed, stands, unless and until a defendant advances countervailing credible and persuasive evidence sufficient to rebut that presumption").
On this record we see no error of law or abuse of discretion. Because no transcript or recording of the plea colloquy was included, we have no way, absent other evidence, to ascertain "whether the defendant's admission, or his admission supplemented by the State's offer of proof, demonstrate[d] ‘a strong factual basis for the plea.’ " Commonwealth v. DelVerde, 398 Mass. 288, 300 (1986), quoting North Carolina v. Alford, 400 U.S. 25 (1970). The defendant did not provide an affidavit from trial counsel or the plea judge, and nothing else in the record challenges the presumption of regularity. Nonetheless, even without the presumption, substantial information from the police report supports a reasonable conclusion that the defendant held the intent to distribute drugs at the time of his apprehension. The police witnessed the defendant exit and reenter a house "known for illegal drug sales," and then leave again to walk toward a waiting car with an assortment of drugs on his person. The defendant admitted to police that he possessed a small bag of marijuana in his jacket but failed to disclose, among other things, the eleven individually wrapped packets of crack cocaine in his shorts. The judge did not commit an error of law or abuse his discretion in denying the defendant's motion.
Given that the defendant was arrested on the day of the Super Bowl and he told police upon the discovery of the marijuana "[t]hat's for Superbowl," the judge could have reasonably inferred that the cocaine was also intended for a social gathering. Possession with intent to distribute may include intent to provide the illicit substance to friends. See Commonwealth v. Johnson, 413 Mass. 598, 605 (1992).
These facts distinguish the defendant's case from Commonwealth v. Andrews, 49 Mass. App. Ct. 201, 202-205 (2000), upon which the defendant relies. Additionally in Andrews, the denial of that defendant's request to withdraw his guilty plea was reversed at least in part due to irregularities in the defendant's admission during the plea colloquy. See id. at 203.
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Order denying motion to withdraw guilty plea affirmed.