Opinion
16-P-445
01-17-2017
COMMONWEALTH v. Peter SERRANO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant moved to withdraw his guilty plea and for a new trial after learning of the misconduct of Annie Dookhan, a chemist who tested the suspected cocaine in his case. Following an evidentiary hearing, a Superior Court judge denied the motion. We affirm.
Background . On March 30, 2005, an undercover police officer spoke with the defendant about acquiring a "twenty of rock," meaning twenty dollars' worth of crack cocaine. They arranged a meeting, where the defendant passed a bag to a confederate, who passed the bag to the officer. The officer handed the confederate a twenty dollar bill with a prerecorded serial number. The defendant and confederate were stopped by police a short distance away. The prerecorded twenty dollar bill was recovered from the defendant. Officers conducted a field test of the bag's contents that yielded a positive finding that the substance was cocaine. The defendant was indicted on June 2, 2006, for possession of cocaine with intent to distribute, as well as a subsequent offense.
Police also field tested a second bag found in the confederate's pocket, which tested positive for cocaine.
This case, because it occurred first in time, will be referred to as the first case.
While released on bail for the first case, the defendant was arrested on September 21, 2006, following another controlled buy of crack cocaine. He was subsequently indicted for unlawful distribution of a controlled substance, class B, and for a subsequent offense.
The second case.
The second case was tried first, and the defendant was found guilty. On August 2, 2007, he was sentenced to five to six years at M.C.I., Cedar Junction, five years being the then-applicable mandatory minimum sentence. The same day, the defendant entered an agreed upon guilty plea in the first case and was sentenced to five to six years at M.C.I., Cedar Junction, concurrent with his sentence on the second case. On October 6, 2014, the defendant moved to withdraw his guilty plea and for a new trial in the first case, which was denied.
Discussion . We review the denial of a motion to withdraw a guilty plea "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Acevedo , 446 Mass. 435, 441 (2006), quoting from Commonwealth v. Grace , 397 Mass. 303, 307 (1986).
To prevail on his motion to withdraw his guilty plea, the defendant was required to establish that (1) there was egregious government misconduct in his case, and (2) the egregious misconduct materially influenced his decision to plead guilty. See Commonwealth v. Scott , 467 Mass. 336, 347-357 (2014). As the Commonwealth conceded, Dookhan's participation in the analysis of the seized substance was sufficient to establish a conclusive presumption of "egregious government misconduct." Id . at 354. After considering the totality of the evidence, the judge concluded that the defendant failed to satisfy the second prong of the Scott standard; he failed to "demonstrate a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct." Id . at 355.
When the defendant pleaded guilty in the first case, he had already been sentenced to five to six years in prison on the second case. The defendant and defense counsel shared the belief that a motion to suppress the evidence of the premarked bills (which had been denied in the second case) would be equally unsuccessful in the first case. The plea agreement allowed the defendant to avoid the risk of a substantial sentence in the first case that ran from and after his sentence in the second case. It also allowed the defendant to avoid the possibility of serving time on the second case that did not run fully concurrently with the first case. See Libby v. Commissioner of Correction , 353 Mass. 472, 475-476 (1968). Finally, other evidence supported the charge that the defendant unlawfully distributed cocaine.
While the parties and motion judge use the phrase "dead time," that description is not entirely accurate here, where the defendant was serving a sentence on the second case. See Commonwealth v. Milton , 427 Mass. 18, 21 n.4 (1998) ("The term ‘dead time’ refers to time spent in confinement for which no day-to-day credit is given against any sentence").
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The defendant contends that the transcript of the hearing on the motion to withdraw the guilty plea does not support the motion judge's findings that (1) the officer inquired for cocaine, and (2) the substance field tested positive. The underlying plea colloquy supports the finding that the officer requested a "twenty of rock," street jargon for cocaine. The police report, which the defendant attached to his motion to withdraw his guilty plea, states that the officers field tested the two seized bags of suspected cocaine with positive results. As the motion judge noted, a field test is less reliable than a full lab analysis, but in the context of these facts it bolsters the Commonwealth's case.
Accordingly, the motion judge did not err in finding that the defendant's decision to plead guilty was driven by (1) the likelihood that any motion to exclude testimony concerning the premarked bill would be denied; (2) the defendant's realization that the Commonwealth had already prevailed on the ostensibly weaker second drug case; (3) the defendant's belief, whether erroneous or not, that the same judge would preside over both the first and second drug cases; and (4) the "extraordinarily favorable" plea agreement the defendant received, which avoided the considerable risks of trial, and ensured a sentence that would run entirely concurrent with that already imposed in the defendant's other case.
In the totality of the circumstances, where (1) the defendant risked a far greater period of incarceration if he proceeded to trial, (2) the circumstantial evidence against him on the drug charges was strong, and (3) the defendant received an extremely favorable plea agreement, the judge did not abuse his discretion when he found that no reasonable defendant would have chosen a trial.
Judgment affirmed .
Order denying motion to withdraw guilty plea and for new trial affirmed .