Opinion
11-P-825
03-15-2012
COMMONWEALTH v. ALISON J. VOORHIS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On November 13, 2007, following a fatal motor vehicle accident, the defendant pleaded guilty in Superior Court to manslaughter by motor vehicle in violation of G. L. c. 265, § 13 1/2 , and negligent operation of a motor vehicle while under the influence of alcohol and causing serious bodily injury in violation of G. L. c. 90, § 24L(1). On December 7, 2007, the judge imposed sentences of eight to twelve years for the manslaughter by motor vehicle conviction, a concurrent term of two and one-half years, with six months to serve and the balance suspended for twenty-three years, on the conviction of negligently operating under the influence and causing serious bodily injury, and special conditions of probation. The defendant filed a motion to revise and revoke on January 30, 2008, but requested that no immediate action be taken on this motion. She also appealed her sentence to the Appellate Division, which affirmed her sentence on July 3, 2008. On March 25, 2010, the defendant filed a motion to withdraw her guilty plea and filed a memorandum in support of her motion to revise and revoke. After a nonevidentiary hearing, the plea judge denied the defendant's motions and this appeal followed.
1. In order to be convicted of manslaughter by motor vehicle pursuant to G. L. c. 265, § 13 1/2 , the defendant must have (1) committed manslaughter while (2) operating under the influence. The defendant does not dispute that she was operating under the influence but argues that the facts recited at the plea colloquy were not sufficient to establish manslaughter. Here, the only relevant form of manslaughter is involuntary manslaughter, the elements of which are: '(1) wanton or reckless conduct (2) causing (3) an unintentional and unlawful killing.' Commonwealth v. Filoma, 79 Mass. App. Ct. 16, 22 (2011).
The defendant argues that the facts here are insufficient to establish wanton and reckless conduct. We disagree. The facts presented here -- operating with a blood alcohol level of more than three times the legal limit after admittedly consuming a bottle of wine, driving sixty-seven to ninety miles per hour in a twenty-five mile per hour zone, crossing over into the oncoming lane of traffic, and crashing into the decedent's vehicle and causing injuries that resulted in his death within an hour of the crash, as well as very serious injuries to the defendant's passenger -- are sufficient to establish wanton and reckless conduct. See Commonwealth v. McIntyre, 36 Mass. App. Ct. 193, 198 (1994).
'Wanton and reckless conduct' is 'intentional conduct . . . which conduct involves a high degree of likelihood that substantial harm will result to another.' Commonwealth v. Hendricks, 452 Mass. 97, 103-104 (2008), quoting from Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). See Commonwealth v. Jones, 382 Mass. 387, 390-391 (1981).
The defendant also admitted that an 'open and empty Corona beer bottle was in the passenger compartment of' her vehicle, along with a '200 milliliter bottle of vodka approximately ten feet from [her] driver's door,' and 'a red cup on the console of [her vehicle], which appeared empty but smelled of an alcoholic beverage.'
Similarly, we see no merit to the defendant's related argument that G. L. c. 265, § 13 1/2 , is unconstitutionally vague.
2. Claiming that her guilty plea was not voluntary and intelligent, the defendant appeals the denial of her motion to withdraw her guilty plea. A judge may grant the defendant's motion to withdraw a guilty plea, which is treated as motion for new trial, 'only 'if it appears that justice may not have been done." Commonwealth v. Desrosier, 56 Mass. App. Ct. 348, 353-354 (2002), quoting from Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). 'The motion 'is addressed to the sound discretion of the trial judge, and . . . will not be reversed unless it is manifestly unjust, or unless the [proceeding] was infected with prejudicial constitutional error." Commonwealth v. Colon, 439 Mass. 519, 524 (2003), quoting from Commonwealth v. Russin, 420 Mass. 309, 318 (1995). Ordinarily, we accord ''special deference to the factual findings' of a judge who ruled on the defendant's motion for a new trial 'where, as here, the motion judge also presided at the defendant's trial." Commonwealth v. Pillai, 445 Mass. 175, 185 (2005), quoting from Commonwealth v. Zagrody, 443 Mass. 93, 103 (2004).
'[T]he guilty plea will not be involuntary if the record shows affirmatively, either: (1) an explanation by the judge of the elements of the crime; or (2) a representation that counsel has explained to the defendant the elements he admits by his plea; or (3) defendant's statements admitting facts constituting the unexplained elements' (citations omitted). Commonwealth v. Colantoni, 396 Mass. 672, 679 (1986). Here, the defendant admitted to facts that constituted the disputed element of manslaughter, satisfying the third prong. Moreover, she indicated during the plea colloquy that her attorney had explained the 'nature and elements of each of the indictments and the possible consequences' and that she had signed a waiver of rights form 'freely and voluntarily' after it was explained by her attorney. Furthermore, during the plea colloquy, the defendant specifically waived her motion to dismiss based on the alleged insufficiency of evidence of wanton and reckless conduct. In denying the defendant's motion, the judge found that the defendant had answered his questions 'without any problem. I am convinced that she fully understood everything that happened in this courtroom.' There was no abuse of discretion.
3. The defendant claims that her attorney was ineffective because she claims that counsel told her that the judge indicated that he would impose a five-year sentence and that this was in line with the forty- to sixty-month sentencing guideline. She contends that the motion judge abused his discretion by failing to hold an evidentiary hearing on her claims of ineffective assistance of counsel. '[T]he judge may decide a [motion to withdraw guilty plea] based solely on affidavits; may discredit untrustworthy affidavits; and need only proceed to evidentiary hearing 'where a substantial issue is raised [by the motion or affidavits] and is supported by a substantial evidentiary showing." Commonwealth v. Lopez, 426 Mass. 657, 663 (1998), quoting from Commonwealth v. Stewart, 383 Mass. 253, 260 (1981). Here the judge ruled that he 'certainly made no representations to [the defendant] or her lawyer that there was a five-year sentence on the table.' It was within the judge's province to discredit as 'self-serving' the affidavits submitted on behalf of the defendant, and instead to credit, as the record reflects, that the pleading defendant acknowledged that she faced a maximum statutory sentence of twenty years and a mandatory minimum of five years on the manslaughter charge, a mandatory minimum sentence of two and one-half years on the negligent operation charge, that the judge could impose the maximum sentences and could order them to run concurrently or consecutively, and that the judge would permit her to withdraw her plea if he intended to impose a sentence that exceeded that recommended by the district attorney.
Plea counsel averred in his affidavit that '[t]he court did not expressly indicate that it was inclined to impose the five-year sentence I had proposed, but I got the distinct impression that it would. Based on my impressions during the lobby conference . . . I had confidence that the court would indeed impose a five-year sentence.'
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Moreover, under the familiar Saferian test, counsel's behavior must 'fall [] measurably below that which might be expected from an ordinary fallible lawyer' and have 'likely deprived the defendant of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). 'In the context of a guilty plea, in order to satisfy the 'prejudice' requirement, the defendant has the burden of establishing that 'there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Commonwealth v. Clarke, 460 Mass. 30, 47 (2011), quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985). The defendant avers that she would have gone to trial but for the statements by counsel. However, in the absence of any evidence of a substantial defense that the defendant could have presented at trial, the defendant has failed to show that a decision to reject the plea bargain would have been rational under the circumstances. See Clarke, supra at 47-48. Indeed, the defendant faced a potential term of more than twenty years in prison, and by entering into a plea agreement, her exposure was effectively capped. Indeed, the judge noted that 'this, frankly, was perhaps among the worst of the worst cases that I've heard factually. It was horrible.' He stated that 'but for the recommendation of the district attorney, I probably would have gone higher,' but he 'knew she'd have the right to withdraw her plea' and the judge wanted to bring 'finality' to the case. Thus, the defendant failed to present sufficient evidence to establish 'prejudice' under the second prong of Saferian. In sum, the judge did not abuse his discretion for failing to hold an evidentiary hearing.
4. Where the sentence imposed was well within the sentencing guidelines and there is no evidence that the judge based his decision on the emotions generated by the case, we discern no merit to the defendant's arguments that the sentence was based on improper factors.
Orders denying motions for postconviction relief affirmed.
By the Court (Katzmann, Smith & Grainger, JJ.),