Opinion
No. 15–P–815.
10-31-2016
COMMONWEALTH v. Justin D. TATUM.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Justin Tatum, was charged with trafficking cocaine, a school zone violation, unlawful possession with intent to distribute marijuana, unlawful possession of a firearm, possession of counterfeit bills, and operating an uninsured motor vehicle in indictment 2004–00313. He also was charged with unlawful possession of cocaine with intent to distribute, a school zone violation, resisting arrest, and using a motor vehicle without authority in indictment 2005–00160. On August 13, 2009, he pleaded guilty to the 2004 and 2005 charges as indicted, and received an aggregate term of twelve and one-half years to run concurrently with a fifteen-year sentence he received for an unrelated 2007 offense that was imposed in July, 2009.
The operating an uninsured motor vehicle charge was later dismissed.
The defendant had been convicted of trafficking in cocaine with a net weight of 200 grams or more and unlawful possession of marijuana with intent to distribute.
The defendant now appeals from a special magistrate's decision, as affirmed by a Superior Court judge, denying in part the defendant's motion to withdraw his guilty plea as to indictment 2004–00313. The defendant raises three arguments in this appeal: (1) that the magistrate abused his discretion by concluding that the defendant did not demonstrate a reasonable probability that knowledge of Annie Dookhan's misconduct would have materially influenced his decision to plead guilty; (2) that Dookhan's misconduct constituted newly discovered evidence rendering the defendant's plea neither knowing nor voluntary; and (3) that the guilty pleas in the 2004 and 2005 cases were part of an indivisible plea requiring the court to allow withdrawal in both cases. We affirm the decision of the Superior Court judge.
The magistrate allowed in part his motion to withdraw his guilty plea as to indictment 2005–00160 because Annie Dookhan was the primary chemist responsible for the initial identification and weighing of all the substances of the primary charge.
We review an order denying a motion for new trial “to determine if the judge committed ‘a significant error of law or other abuse of discretion.’ “ Commonwealth v. Scott, 467 Mass. 336, 344, (2014), quoting from Commonwealth v. Sherman, 451 Mass. 332, 334 (2008). “Here, because a Superior Court judge affirmed the order of the special magistrate, we treat the magistrate's findings and rulings as those of the judge and apply the same standard of review.” Commonwealth v. Williams, 89 Mass.App.Ct. 383, 388 (2016).
To prevail on a motion to withdraw a guilty plea in a Dookhan-related matter, the defendant must demonstrate that (1) egregious government misconduct occurred in his case prior to the entry of his guilty plea, and (2) the misconduct influenced his decision to plead guilty. See Scott, supra; Ferrara v. United States, 456 F.3d 278, 286 (1st Cir.2006). In matters “where Dookhan signed the certificate of drug analysis as either the primary or secondary chemist in the defendant's case, the defendant is entitled to a conclusive presumption that Dookhan's misconduct occurred in his case, that it was egregious, and that it is attributable to the Commonwealth.” Scott, supra at 338. This presumption, however, does not “relieve the defendant of his burden ... to particularize Dookhan's misconduct to his decision to tender a guilty plea.” Id. at 354. The defendant still “must demonstrate a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct.” Id. at 354–355. Moreover, the defendant must establish that a decision to reject the plea bargain “would have been rational under the circumstances.” Id. at 356, quoting from Commonwealth v. Clarke, 460 Mass. 30, 46–47 (2011).
The magistrate found that although the defendant pleaded to the charges in both indictments, trafficking in cocaine and unlawful possession of marijuana, Dookhan was only involved with the chemical analysis of the marijuana. Therefore, the defendant only received the benefit of the Scott two-pronged analysis for the marijuana charge. See id. at 346. Additionally, the magistrate determined that the marijuana charge was a minor component of the plea deal as a whole. The defendant received a ten-year sentence for the 2004 cocaine charge and a two-year sentence for the marijuana charge, both to run concurrently with a fifteen-year sentence in the unrelated 2007 matter. Moreover, there was still an evidentiary basis for the Commonwealth to try the marijuana charge, albeit weakened by Dookhan's involvement. Given the strength of the case, along with the advantageous nature of the plea deal, the magistrate concluded that there was not “a reasonable probability that the defendant would not have pleaded guilty had he known of Dookhan's misconduct.”
While it is unclear from the record whether Dookhan actually tested the substance or merely identified it by sight, circumstantial evidence as to the identity of the substance exists to support the charge. The occupants of a second vehicle present at the scene indicated to police that they had been meeting with the defendant to purchase marijuana. In addition, the officer who seized the marijuana likely would have been able to testify to its appearance and smell and, based on his experience, to offer an opinion that the substance was consistent with marijuana.
We agree with the magistrate's determination. The maximum sentence the defendant could have received for the 2004 cocaine charge is twenty years. See G.L. c. 94C, § 32E. It would not have been rational under the circumstances for the defendant to go to trial and risk a harsher sentence if he was convicted. Furthermore, the defendant's plea attorney acknowledged that the Commonwealth had a strong case against his client and could not state definitively that he would not have recommended that the defendant plead guilty even with knowledge of Dookhan's involvement. The magistrate correctly applied the Scott analysis and did not abuse his discretion.
Additionally, prior to pleading guilty, the defendant litigated a motion to suppress the evidence, which was denied.
The defendant next argues that Dookhan's misconduct constituted newly discovered evidence rendering the defendant's plea neither knowing nor voluntary. The defendant is unable to establish prejudice under the second prong of the Ferrara analysis. See Ferrara, 456 F.3d at 286. Therefore, we reject this argument. See Scott, 467 Mass at 361–362.
The court in Scott did not answer whether a voluntary guilty plea constitutes a waiver of the right to seek a new trial on the grounds of newly discovered evidence, but stated, “if a defendant is unable to establish prejudice under the second prong of the Ferrara analysis, it is likely that he or she would be unable to make the showing of prejudice required by the other two grounds as well.” Scott, supra at 361.
Finally, we are unpersuaded by the defendant's argument that the 2004 and 2005 charges were part of an indivisible plea agreement with the Commonwealth requiring that the motion to withdraw be granted for both. Although “plea bargaining is often analogized to a contractual negotiation,” Commonwealth v. Tirrell, 382 Mass. 502, 512 (1981), the defendant has not shown that the parties intended for all of his guilty pleas to rise or fall together. See Commonwealth v. Smith, 384 Mass. 519, 523 (1981), quoting from Blaikie v. District Attorney for the Suffolk Dist., 375 Mass. 613, 618 (1978) (defendant must have “reasonable grounds for assuming his interpretation of the bargain”). The magistrate found that there was no evidence to show that the plea bargain relied on a successful plea to both charges at once. It appears from the record that it was to the defendant's advantage, and his goal, to dispose of both cases in one plea, but there is no indication that the Commonwealth would have refused to negotiate or offer the plea deal had the defendant refused to dispose of both cases at once. There was no abuse of discretion in refusing to view the pleas to the 2004 and 2005 charges as a whole that could not be separated.
Judgments affirmed.