Opinion
13-P-1735
11-22-2017
COMMONWEALTH v. FRANCISCO L. UBEIRA-GONZALEZ.
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
In 2010, the defendant pleaded guilty to possession of a class A controlled substance with the intent to distribute, possession of a class A controlled substance, resisting arrest, and assault and battery on a police officer. In 2013, the defendant moved to withdraw his 2010 guilty pleas. The defendant's motions were based on alleged misconduct by Sonja Farak, an assistant analyst at the Department of Public Health's State Laboratory in Amherst (Amherst laboratory). The defendant's motions to withdraw his pleas were allowed. The Commonwealth appealed, and we reversed. Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37 (2015). The Supreme Judicial Court denied the defendant's application for further appellate review without prejudice, but remanded the case to this court in light of Commonwealth v. Ware, 471 Mass. 85 (2015), and Commonwealth v. Cotto, 471 Mass. 97 (2015). Commonwealth v. Ubeira-Gonzalez, 471 Mass. 1108 (2015).
Thereafter, we stayed the matter pending the results of an evidentiary hearing in Cotto, in which a Superior Court judge heard evidence on, inter alia, the extent and the reach of Farak's misconduct at the Amherst Laboratory. In light of the judge's subsidiary findings and order in the Cotto case, we order in this case as follows: (1) upon reconsideration, the orders granting a new trial on the defendant's convictions of resisting arrest and assault and battery on a police officer are reversed, and a new order shall enter denying the motions as to the pleas on these crimes; and (2) upon reconsideration, the remainder of the orders granting a new trial on the defendant's convictions of possession of a class A controlled substance with the intent to distribute and possession of a class A controlled substance are vacated, and those matters are remanded to the District Court for further action in light of the subsidiary findings and order in the Cotto case and the holding in Commonwealth v. Ruffin, 475 Mass. 1003 (2016).
So ordered.
By the Court (Trainor, Meade & Neyman, JJ.),
The panelists are listed in order of seniority. This case first was submitted to a panel composed of Justices Grasso, Kantrowitz, and Meade. Justices Grasso and Kantrowitz retired before the remand was ordered and the Cotto hearing was held. Justices Trainor and Neyman were substituted, and they participated in this decision. --------
/s/
Clerk Entered: November 22, 2017.