Opinion
2021-P-735
07-21-2022
COMMONWEALTH v. ALEX VALLE.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The Commonwealth appeals from an order allowing the defendant's motion for new trial in which he sought to withdraw his guilty pleas from 2004. In his motion for new trial, the defendant alleged that Sonia Farak was one of the chemists who analyzed the drugs in his case. The Commonwealth disputes that fact and argues that the judge committed an error of law in allowing the defendant's motion without an evidentiary hearing. We affirm.
On January 5, 2005, the defendant pleaded guilty to possession of a class B substance, with the intent to distribute, and possession of a class B substance. Fourteen years later, on February 8, 2019, the defendant filed a motion for new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), alleging that "at the time [he] entered the plea he was unaware that Sonia Farak had performed testing on the drug samples for his case and was not aware of Farak's egregious conduct at the Amherst Drug Lab. Had [he] known these facts, he would not have pleaded guilty to the charges against him." In the papers accompanying the motion, there was evidence suggesting that "SJF" performed tests on the drug samples on October 25, 2004, and that "JLH" performed tests on the drug samples on October 22, 2004.
Neither party was able to locate a certificate of analysis for the drugs at issue in this case.
"SJF" are the initials for Sonja Farak.
"JLH" are the initials for Lab Supervisor James Hanchett.
The Commonwealth countered by introducing documents it contended demonstrated that only "JLH" analyzed the samples at issue. The Commonwealth submitted an affidavit containing information from Sharon Salem, former evidence officer of the Amherst Lab, that the handwritten documentation submitted demonstrated that Hanchett was the analyst in the case. At that time, the Commonwealth requested that the judge deny the defendant's motion without an evidentiary hearing.
Subsequently, the defendant filed a supplemental memorandum arguing that the computer-generated printouts demonstrated that Farak was the chemist and the Commonwealth's submissions were insufficient to prove the contrary. In its supplemental opposition, the Commonwealth requested an evidentiary hearing because of the presence of a factual dispute. On December 5, 2019, the judge, who was also the judge who presided over the defendant's plea fourteen years earlier, allowed the defendant's motion without an evidentiary hearing.
We treat a motion to withdraw a guilty plea as a motion for new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Cotto, 471 Mass. 97, 105 (2015). A judge may grant a motion for a new trial any time it appears that "justice may not have been done." Commonwealth v. Scott, 467 Mass. 336, 344 (2014). The decision whether to allow a motion to withdraw a guilty plea is left to the sound discretion of the motion judge. See Commonwealth v. Sherman, 451 Mass. 332, 334 (2008). We show particular deference to the rulings of a motion judge who also presided over the plea colloquy. See Scott, supra.
We need not again go into the sordid details of "one of the biggest scandals in the Commonwealth's justice system in decades." Commonwealth v. Caliz, 486 Mass. 888, 889 (2021). Because of Farak's "misconduct, compounded by prosecutorial misconduct," the Supreme Judicial Court dismissed all criminal convictions tainted by "governmental wrongdoing." Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700, 704-705 (2018). In fashioning the remedy, the Court held that the class of "Farak defendants" automatically entitled to relief includes not only cases "already dismissed where Farak signed the drug certificate, [but also] all convictions based on evidence that was tested at the Amherst lab on or after January 1, 2009, regardless of the chemist who signed the drug certificate, and all methamphetamine convictions where the drugs were tested during Farak's tenure at the Amherst lab." I_d. at 729. The Court did not address situations where Farak allegedly tested other types of drugs prior to 2009 (and as to which no drug certificate can be located), but the Commonwealth in its brief has acknowledged that, if Farak analyzed the narcotics at issue, "there is no question that he would be entitled to the vacatur of his plea and the dismissal with prejudice of the charge."
In this case, the defendant submitted to the court computer-generated records indicating that Farak had some involvement in the testing of the alleged controlled substances that the defendant was charged with possessing. The affidavit submitted by the Commonwealth, with information from Sharon Salem, did not refute the computer-generated records:
"[T]he documentation demonstrates that Hanchett did the testing, as he wrote the handwritten documents, including the two 'control cards' from the testing date. Salem confirmed that the two documents with the initials 'SJF' on them are documents created during some form of test using one of the lab machines, but was unable to offer any explanation as to why those initials appear on those forms in light of the other evidence that Hanchett did the testing."
The judge had this affidavit when he made his decision and considered Salem's statements to the prosecutor. We agree with the judge that the records "seem to show that . . . Hanchett conducted the analysis and reported his findings" but that "other lab . . . records point to . . . Farak's involvement." The Commonwealth presented nothing to the trial court to conclusively refute Farak's alleged involvement. We also agree with the judge that, "the [c]ourt cannot work from the position that 'there are any number of other explanations' ... to support any of the lab[']s records as being credible and thus used to support the Commonwealth's opposition." Put another way, the judge did not credit the Commonwealth's argument that the evidence showed that Hanchett alone tested the alleged controlled substances in this case. The Commonwealth claims that, at an evidentiary hearing, it would call Salem to testify. However, no offer of proof or other information was presented to the motion judge or to us that she would testify to anything other than what is contained in the affidavit, which in turn is based solely on her review of the documentary evidence and not on personal knowledge.
The thrust of the issue before the hearing judge was whether Farak did any testing on the substances in the defendant's case. We do not find that anything offered by the Commonwealth creates "sufficient credible information to cast doubt on the issue." Commonwealth v. Denis, 442 Mass. 617, 629 (2004). If a judge finds that the motion and affidavits do not present a substantial issue, then "[t]he judge may rule on a motion for a new trial without an evidentiary hearing." I_d. at 628.
Because the defendant presented sufficient evidence to show that Farak tested the alleged controlled substances in his case, there was no abuse of discretion in the allowance of the defendant's motion for a new trial based on his belief that justice may not have been done.
Order allowing the defendant's motion for new trial affirmed.
Green, C.J., Hand & D'Angelo, JJ.
The panelists are listed in order of seniority.