Opinion
13-P-2029
05-13-2015
COMMONWEALTH v. TONY SUMRALL.
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
As relevant here, the defendant pleaded guilty to assault and battery on a police officer in violation of G. L. c. 265, § 13D. The defendant several years later filed a motion to withdraw his guilty plea and for a new trial along with a supporting memorandum of law. The motion was denied and the defendant now appeals. The defendant argues that he was entitled to withdraw his guilty plea because in failing to articulate one element of the offense his indictment was faulty, and that, as a consequence, the court that accepted his guilty plea lacked jurisdiction.
With respect to this charge the indictment states that the defendant "on 06/09/2004 did assault and beat DEAN BICKERTON, a police officer who was then engaged in the performance of his or her duties, in violation of G. L. c. 265, § 13D." The indictment does not contain an allegation that the defendant knew that the victim was a police officer, which is an element of the offense. Commonwealth v. Colon, 81 Mass. App. Ct. 8, 22 (2011). We may assume without deciding that where an indictment must recite a particular element of an offense, the failure to do so is a jurisdictional defect, and thus one we may address notwithstanding a defendant's guilty plea. We therefore turn to the merits.
This case is controlled in all material respect by Commonwealth v. Bacon, 374 Mass. 358, 360-361 (1978), where the Supreme Judicial Court held that, except in some narrow circumstances -- for example, where a book seller can commit a crime not merely by knowingly possessing an obscene book, but only by doing so where he or she also knows it to be obscene -- scienter need not be alleged in an indictment. This case does not fall into any category with respect to which recitation of the scienter requirement is mandatory. The knowledge that one is assaulting a police officer, required for conviction in this case, is parallel to the knowledge that the defendant possessed a gun necessary for conviction in Bacon.
The defendant also argues that his guilty plea was not knowing and voluntary. This claim was not raised or addressed below, and we decline to consider it for the first instance on appeal.
Order denying motion to withdraw guilty plea and for new trial affirmed.
By the Court (Rubin, Brown & Maldonado, JJ.),
The panelist are listed in order of seniority.
Clerk Entered: May 13, 2015.