Opinion
No. 15–P–1122.
06-23-2016
COMMONWEALTH v. Joshua G. STEGEMANN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 1996, the defendant admitted to sufficient facts on charges of breaking and entering in the nighttime with the intent to commit a felony, wanton destruction of property with a value over $250, distribution of cocaine, and distributing that cocaine in a school zone. Less than one month later, the drug laboratory analysis of the substance that had been alleged to be cocaine revealed that it did not in fact contain cocaine or any illegal controlled drug. Within a few weeks, the defendant filed a motion for new trial, which was allowed as to the distribution and school zone convictions. On the same day, the Commonwealth nol prossed those charges. The motion judge, who was also the plea judge, maintained the one-year, agreed-to sentence on the remaining property crime convictions, which had originally run concurrently with the two-year sentence on the school zone conviction. The defendant did not appeal.
The school zone conviction had run consecutively to the one-day sentence on the distribution conviction.
Eighteen years later, in 2014, the defendant again moved for a new trial, this time challenging his guilty pleas to the remaining property crime convictions. In that pro se motion, the defendant claimed his attorneys advised him to plead guilty despite his claimed innocence. He also claimed he was resentenced without being brought into court. The motion judge, who was also the plea judge, denied the motion. The defendant noticed but did not perfect an appeal.
In 2015, the defendant filed a motion to withdraw his guilty pleas (third motion for new trial). In this motion, he claimed for the first time that he would not have pleaded guilty to the property crimes had he known the supposed cocaine was not actually an illegal controlled substance. The same judge denied the third motion for new trial, and this appeal ensued. We affirm.
“A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001).” Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014), citing Commonwealth v. Furr, 454 Mass. 101, 106 (2009). Any grounds for relief not raised by the defendant in his original or amended motion for a new trial are “waived unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion.” Mass.R.Crim.P. 30(c)(2). “The rule of waiver ‘applies equally to constitutional claims which could have been raised, but were not raised’ on direct appeal or in a prior motion for a new trial.” Commonwealth v. Watson, 409 Mass. 110, 112 (1991), quoting from Commonwealth v. Deeran, 397 Mass. 136, 139 (1986). The Supreme Judicial Court has recommended that judges restrict the exercise of their discretion to review previously unraised claims to “those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result.” Watson, supra, quoting from Fogarty v. Commonwealth, 406 Mass. 103, 107–108 (1989). This is not such a case.
Here, within a few weeks of the defendant's guilty pleas, he and his attorney were notified that what had been believed to be cocaine was in fact not an illegal controlled substance. Although the defendant's present claim—that he would not have pleaded guilty to the property crimes had he known the supposed cocaine was not actually cocaine—was available at the time of his first motion for new trial, he declined to raise it until his third motion for new trial. By doing so, the defendant effectively waived his claim. See Commonwealth v. Chase, 433 Mass. 293, 297 (2001). See also Mass.R.Crim.P. 30(c)(2).
Even if the claim was revived because the judge addressed it, the claim is nonetheless without merit. As a starting point, we note the special deference we owe to the motion judge because he was also the same judge who took the defendant's plea. See Commonwealth v. Grant, 426 Mass. 667, 672 (1998). As the judge ruled, the defendant's sentence “was fair at the time, considering the defendant's record, being on probation with a 215 day suspended sentence, and the facts of the cases.” Unlike in Commonwealth v. Scott, 467 Mass. 336, 345–346 (2014), upon which the defendant relies, there was neither government misconduct nor external circumstances in this case that induced the defendant's guilty plea. Rather, as the motion judge reasoned, the fact that the defendant waited eighteen years to bring this claim (unsupported by affidavits from his attorneys) indicates his satisfaction with the agreed-upon guilty plea. See Commonwealth v. Hoyle, 67 Mass.App.Ct. 10, 13 (2006).
Like the defendant in Hoyle, this defendant filed his third motion for new trial while in Federal custody where he likely faced a sentencing enhancement based on his convictions of the property crimes here.
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There is likewise no merit to the defendant's claim that his guilty plea was the product of mutual mistake. While there was a mistake as to what the composition of the supposed cocaine was, that mistake was remedied within a few weeks of the plea itself and by the subsequent dismissal of the drug charges. The motion judge was not required to credit the defendant's claimed belief that the property crimes were indivisible components of the agreed-upon plea deal. See Commonwealth v. Marinho, 464 Mass. 115, 123 (2013) (“[A] judge is entitled to discredit affidavits he or she does not find credible”). That the defendant did not seek a new trial on this ground when it was first known eighteen years ago further supports its rejection. The defendant failed to prove that he would not have pleaded guilty to the property crimes had he known the substance was not cocaine, and we discern no abuse of discretion in the judge's denial of the defendant's third motion for new trial.
Order dated May 14, 2015, denying third motion for new trial affirmed.