Opinion
18-P-1612
04-06-2020
COMMONWEALTH v. Leigh R. THIBODEAU.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 10, 1986, the defendant, Leigh R. Thibodeau, admitted to sufficient facts on a charge of assault and battery by means of a dangerous weapon. Approximately thirty-two years later, he moved to withdraw his admission, arguing that it was not entered knowingly, intelligently, or voluntarily. The motion was denied, as was his subsequent motion to reconsider. On appeal, he argues for the first time that he did not knowingly waive counsel. He also argues that his due process rights were violated when contemporaneous court records were destroyed, and that he did not knowingly or intelligently enter his plea. We affirm.
Background. On September 30, 1985, the defendant was arraigned on this offense; the docket indicates that the judge advised him of his right to counsel; he pleaded not guilty and was released on personal recognizance. At a pretrial conference on November 14, 1985, the defendant was advised of his right to a first instance jury trial, and he "waived" his right to an attorney. On January 10, 1986, at the time of the scheduled bench trial, the defendant changed his plea to "admits suff[icient] facts"; a guilty finding entered and the defendant was placed on probation until January 9, 1987.
On January 19, 2018, the defendant filed a "Motion to Vacate Plea and for New Trial," arguing that he did not enter into the plea "knowingly, intelligently, or voluntarily." Specifically, the defendant contended that, at the time of his admission he believed that he would receive a continuance without a finding and that the case, eventually, would be dismissed, with no guilty finding on his record. In other words, he maintained, the plea judge failed to ascertain whether the defendant understood the consequences of his plea. The defendant also argued in his motion that the available records did not indicate whether the judge administered the required colloquy, advising him of the rights he was giving up by admitting to sufficient facts. On July 3, 2018, the judge denied the defendant's motion, explaining,
"The defendant has not met the burden of presenting credible evidence to rebut the presumption of regularity. The defendant's ... self serving statements are not enough given [the] passage of time. The defendant was arraigned by Judge Grasso and [the] docket sheet indicate[s he was] advised of [his] right[s] to counsel and first instance jury [trial]."
The defendant subsequently filed a motion to reconsider along with the affidavit of Attorney Joseph Spinale; that motion was also denied.
The defendant now appeals, arguing again that he did not enter his plea intelligently because he did not understand the consequences of the plea. Additionally, for the first time on appeal, the defendant argues that he did not knowingly waive counsel and that, given the absence in the record of a written waiver signed by the defendant and certified by the judge, counsel was not effectively waived.
Discussion. "A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v. Furr, 454 Mass. 101, 106 (2009). "When, as here, the motion judge did not preside [at the plea hearing], ... we regard ourselves in as good a position as the motion judge to assess the [plea] record." Commonwealth v. Petetabella, 459 Mass. 177, 181 (2011), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
Due process requires that a plea of guilty be accepted only where "the contemporaneous record contains an affirmative showing that the defendant's plea was intelligently and voluntarily made." Furr, 454 Mass. at 106. Ordinarily, "[t]he burden is on the Commonwealth to show that the defendant's plea was intelligently and voluntarily made." Id. at 107. However, the burden shifts "[w]hen a defendant challenges a guilty plea after court records have been destroyed lawfully pursuant to court rules.... In such cases, the defendant must present evidence sufficient to rebut a presumption that the plea proceeding was conducted correctly." Commonwealth v. Grannum, 457 Mass. 128, 133 (2010), citing Commonwealth v. Lopez, 426 Mass. 657, 661-662, 664-665 (1998).
Here, the defendant left his guilty plea unchallenged for thirty-two years; as a result, the contemporaneous record of the plea is lost. See Lopez, 426 Mass. at 659 n.3, citing G. L. c. 221, § 27A, and Rule 211(A)(4) of the Special Rules of the District Courts (1997) (rules governing preservation and destruction of court records and stenographic notes). This loss of the record and inability effectively to reconstruct it are directly attributable to the defendant's delay. Accordingly, "the defendant's attack on his pleas by means of a rule 30 (b) motion necessarily proceeds on a basis extrinsic to the unavailable contemporaneous record." Id. at 661.
The panelists are listed in order of seniority.
In these circumstances, "if the challenge is to advance at all, [it] must be accompanied by sufficient credible and reliable evidence to rebut a presumption that the prior conviction was valid." Lopez, 426 Mass. at 665. Overcoming the presumption requires proof "above and beyond a movant's ‘credulity straining’ contentions regarding ‘questions the judge did not ask’ ... [thirty-two] years earlier." Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 50 (1997), quoting Commonwealth v. Duest, 30 Mass. App. Ct. 623, 627 (1991).
The presumption of regularity is dispositive of two of the defendant's claims: that he did not knowingly waive counsel, see Commonwealth v. Means, 454 Mass. 81, 89-90 (2009), and that he entered into his plea unintelligently because he did not understand the consequences of the plea. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 638 (2007). The defendant offers two affidavits in an effort to overcome that presumption of regularity. First, the defendant's own affidavit states that, prior to entering his plea, he was not informed of his right to consult with an attorney, and that he believed the judge would continue the case without a finding and dismiss the case upon completion of his probation term. Had the defendant known the judge entered a guilty finding, he continued, he "would not have entered a plea and would have elected to go to trial." Second, the defendant submitted the affidavit of Attorney Joseph Spinale, who, "[s]tarting from 1987 and for a couple of years thereafter ..., appeared frequently in the Lowell District Court as a bar advocate." Spinale's affidavit claims that, while he did not witness the defendant's plea, he witnessed many other colloquies and plea entries at the Lowell District Court, and he "recall[ed] matters where there was a failure by the court to strictly follow the proper protocols at the time of colloquy and plea entrance."
As a preliminary matter, Spinale's affidavit provides little support for the defendant. The reason that Spinale states for having familiarity with the Lowell District Court is that he appeared at the court as a bar advocate, beginning in 1987; the defendant pleaded guilty on January 10, 1986. Since nothing else in Spinale's affidavit indicates that he had prior experience in the Lowell District Court, there is no way of knowing whether his recollections include admissions heard in 1986, or even admissions taken by the plea judge himself; accordingly we afford it little weight. See Commonwealth v. Cartagena, 466 Mass. 1021, 1022 (2013).
All that remains, then, is the defendant's self-serving statements; we, like the motion judge, find them insufficient to overcome the presumption of regularity. See Commonwealth v. Haskell, 76 Mass. App. Ct. 284, 293-295 (2010). Moreover, the defendant's affidavit filed in support of his motion to vacate his plea and for a new trial does not suggest any reason to believe that a decision to try the case rather than admit to sufficient facts would have accomplished anything better for him. Finally, we note that the defendant's motivation in bringing this matter was based on an adverse collateral consequence -- an entry on his Criminal Offender Record Information (CORI) record -- that was not contemplated at the time of the admission. Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 638 (2001) ("The presumption of regularity and the principle of finality are particularly applicable when, as here, adverse consequences appear, especially adverse consequences not contemplated or considered possible at the time of the proceeding").
The defendant's remaining claim, again, raised for the first time on appeal, is that he did not effectively waive counsel because the plea judge did not secure a written waiver, contrary to the requirements of S.J.C. Rule 3:10 (3), as appearing in 475 Mass. 1301 (2016). We agree with the defendant that the remaining record does not contain a written waiver of counsel signed by the defendant and certified by the judge; however, there is sufficient other evidence in the record to demonstrate that the waiver was voluntary and intelligent. See Commonwealth v. Leonardi, 76 Mass. App. Ct. 271, 276-277 (2010). As explained supra, we presume that the plea judge provided the defendant an appropriate colloquy, including a careful inquiry on the record that the defendant understood the waiver was "made with ‘a sense of the magnitude of the undertaking’ and the ‘disadvantages of self-representation’ ...: an awareness that there are technical rules governing the conduct of a trial, and that presenting a defense is not a simple matter of telling one's story." Means, 454 Mass. at 88-90, quoting Commonwealth v. Lee, 394 Mass. 209, 216-217 (1985). Furthermore, the docket indicates that on September 30, 1985, when the judge arraigned the defendant, he advised him of his right to counsel; further, on November 14, 1985, at the pretrial conference, the clerk checked the box "waived" under the section "ATTORNEY NAME." We are satisfied that the presumption of regularity and the docket, taken together, demonstrate that the defendant's waiver of his right to counsel was voluntary and intelligent. See Commonwealth v. Pamplona, 58 Mass. App. Ct. 239, 242 (2003).
Order denying motion to vacate plea and for new trial affirmed.
Order denying motion to reconsider affirmed.