Opinion
13-P-856
09-01-2015
COMMONWEALTH v. SHELDON SILVA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals the denial of his motion to withdraw his guilty plea to possession of cocaine with intent to distribute. Relying on Commonwealth v. Scott, 467 Mass 336 (2014), the defendant argues that, due to the misconduct of the Hinton State Laboratory Institute technician (chemist), he is entitled to a remand to the trial court for a new trial, or to permit the judge to address the voluntariness of his guilty plea. The Commonwealth agrees that the case must be remanded for further proceedings.
The defendant also pleaded guilty to firearm charges, but those charges were not challenged in his motion to vacate his plea and, thus, not part of this appeal.
"[W]hen a defendant seeks to vacate a guilty plea as a result of underlying government misconduct, rather than a defect in the plea procedures, the defendant must show both that 'egregiously impermissible conduct . . . by government agents . . . antedated the entry of his plea' and that 'the misconduct influenced his decision to plead guilty or, put another way, that it was material to that choice.'" Commonwealth v. Scott, 467 Mass. at 346, quoting from Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006). This two-prong analysis applies here.
In Scott, supra at 352, the court held that "in cases in which a defendant seeks to vacate a guilty plea under Mass. R. Crim. P. 30 (b) as a result of the revelation of [the chemist]'s misconduct, and where the defendant proffers a drug certificate from the defendant's case signed by [the chemist] on the line labeled 'Assistant Analyst,' the defendant is entitled to a conclusive presumption that egregious government misconduct occurred in the defendant's case." Included in the record of this case is a March 14, 2011, drug certificate signed by the chemist in her role as assistant analyst in the defendant's case. That showing satisfies the defendant's burden under the first prong utilized in Scott. Ibid.
The second prong of the analysis requires that the defendant "demonstrate a reasonable probability that he would not have pleaded guilty had he known of [the chemist]'s misconduct." Id. at 354-355. It was, therefore, incumbent upon the motion judge, in ruling on the defendant's motion to withdraw his plea, to consider "the actual facts and circumstances surrounding the defendant's decision at the time of the guilty plea in light of the one hypothetical question of what the defendant reasonably may have done if he had known of [the chemist]'s misconduct." Id. at 357.
In this case, the motion judge did not have the benefit of the court's teaching in Scott, and, instead, concluded that the defendant "is not entitled to withdraw those pleas merely because he now believes a different defense strategy might have been more beneficial to him." Accordingly, the order denying the motion to withdraw the plea is vacated, and the case must be remanded to the trial court for findings and rulings on the issue "whether, in the totality of the circumstances, the defendant can demonstrate a reasonable probability that had he known of [the chemist]'s misconduct, he would not have admitted to sufficient facts and would have insisted on taking his chances at trial." Id. at 358.
So ordered.
By the Court (Cohen, Hanlon & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 1, 2015.