Opinion
16-P-946
06-02-2017
COMMONWEALTH v. Shawn SMITH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In January, 2008, the defendant was indicted for unlawful distribution of a class B substance (cocaine) as a subsequent offense, and a related school zone violation. If convicted of the charges, he faced a minimum mandatory sentence of seven years incarceration (at least five years of which would be in State prison). See G. L. c. 94C, § 32A(d ). In November, 2008, the defendant pleaded guilty to unlawful distribution and received a sentence of two years of incarceration in a house of correction (making him eligible for parole in one year). As part of the plea arrangement, the Commonwealth dismissed the subsequent offense portion of the unlawful distribution indictment and the school zone indictment.
In January, 2015, the defendant moved to vacate his guilty plea based on the fact that chemist Annie Dookhan was one of the two signatories on the drug certificate used in his prosecution. See Commonwealth v. Scott, 467 Mass. 336, 346 (2014) (adopting the two-part test set forth in Ferrara v. United States, 456 F.3d 278, 290 [1st Cir. 2006] ). After holding an evidentiary hearing at which the defendant and his plea counsel testified, a special magistrate issued findings and rulings, and she proposed that the defendant's motion be denied. A Superior Court judge adopted her findings and issued an order denying the motion. We affirm.
The procedures and standards followed here are consistent with those mandated by Scott. Based on Dookhan's direct involvement, the defendant was extended "a conclusive presumption that egregious government misconduct occurred in [his] case." Scott, supra at 352. The viability of the defendant's motion to withdraw his guilty plea thus turned on the second Ferrara prong, namely, whether he could demonstrate that "the misconduct influenced his decision to plead guilty or, put another way, that it was material to that choice." Scott, supra at 346, quoting from Ferrara, supra at 290. Based on the strong circumstantial evidence that the substance at issue indeed was crack cocaine, and the leniency of the plea arrangement that the defendant accepted (compared to the minimum mandatory sentence he otherwise faced), the magistrate and the judge found that the defendant had not met his burden.
According to testimony given before the grand jury, the defendant sold an undercover police officer two "rock[s]" of what appeared to be crack cocaine, which he had stored in his mouth. He specifically indicated to the officer that they were "the real thing."
We discern no error in the fact finding or in the judge's application of the Ferrara-Scott test. In fact, the defendant does not appear to assert such errors. Instead, he seeks the application of a different test. Specifically, because the drug certificate signed by Dookhan was used in the grand jury proceedings through which the indictments were secured, the defendant argues that this amounts to Commonwealth impairment of those proceedings of such seriousness that it mandates dismissal of the indictments. See generally Commonwealth v. O'Dell, 392 Mass. 445, 449-450 (1984). Compare Commonwealth v. Mayfield, 398 Mass. 615, 621-622 (1986) ("it is not enough for dismissal of an indictment that false or deceptive evidence was presented to the grand jury," defendant "must also show probable prejudice").
We are unpersuaded by the defendant's argument. After carefully and comprehensively addressing the proper legal framework for analyzing a motion to withdraw a guilty plea in a drug case in which Dookhan was directly involved, the Supreme Judicial Court in Scott gave clear instructions on what legal test to apply. We see no basis for departing from that standard absent further direction from that court.
In Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass. 298, 307-308, 326-332 (2017), the Supreme Judicial Court set a course for more generic relief with respect to the expedition of unfiled or unadjudicated motions to withdraw guilty pleas in cases involving drug certificates signed by Annie Dookhan, but it reaffirmed the use of the Ferrara-Scott test in individual proceedings.
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Order denying motion to vacate guilty plea affirmed.