Opinion
20-P-960
03-22-2022
COMMONWEALTH v. Jomaal E. WOLFE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2018, the defendant, Jomaal E. Wolfe, admitted to sufficient facts and accepted guilty findings for carrying a dangerous weapon, G. L. c. 269, § 10 (b ) ; and possession of cocaine with the intent to distribute, G. L. c. 94C, § 32A (a ). He received a suspended sentence. In 2020, the defendant moved to withdraw his admissions and vacate the convictions, and the plea judge denied the motion. Concluding that the record shows that the defendant tendered an intelligent plea and that the defendant has not demonstrated that he received ineffective assistance of counsel, we affirm.
1. Standard of review. "We review a judge's decision on a motion to withdraw a guilty plea and vacate convictions ‘to determine whether the judge committed an abuse of ... discretion or a significant error of law,’ accepting ‘the judge's findings of fact if supported by the evidence.’ " Commonwealth v. Al Kenani, 100 Mass. App. Ct. 288, 291 (2021), quoting Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). "Particular deference is to be paid to the rulings of a motion judge who served as the [plea] judge in the same case." Commonwealth v. Lewis, 96 Mass. App. Ct. 354, 357 (2019), quoting Commonwealth v. Sylvester, 476 Mass. 1, 6 (2016).
2. Intelligent plea. "For a guilty plea to be valid, it must be made voluntarily[ ] and intelligently." Commonwealth v. Hart, 467 Mass. 322, 325 (2014). "A guilty plea is intelligent if it is tendered with knowledge of the elements of the charges against the defendant and the procedural protections waived by entry of a guilty plea." Commonwealth v. Scott, 467 Mass. 336, 345 (2014). Here, the defendant expressed his understanding of the procedural protections he was waiving and agreed to facts recited by the prosecutor establishing all the elements of the crimes. This was adequate to establish an intelligent plea. See Commonwealth v. Sherman, 451 Mass. 332, 335 (2008). There is no case suggesting -- and the defendant cites to no such case -- that a defendant must know whether a crime is a felony or a misdemeanor to tender an intelligent plea.
The defendant asserts that his admission was involuntary, but presents no argument that he was subject to "coercion, duress, or improper inducements." Commonwealth v. Wentworth, 482 Mass. 664, 679 (2019), quoting Scott, 467 Mass. at 345. In any event, the defendant stated at the plea colloquy that this was a voluntary plea and that nobody forced him into the plea or promised him anything for the plea.
Furthermore, the judge expressed well-deserved skepticism of the defendant's claim that he did not know that -- at the least -- the drug crime to which he pleaded was a felony. The defendant stated in his affidavit that plea counsel did not "advise me that I was pleading guilty to a felony nor did he advise me of the many serious consequences of pleading guilty to a felony." Noticeably absent from the defendant's affidavit is any claim that the defendant was himself unaware that he was pleading guilty to a felony. During the plea colloquy, plea counsel identified possession with the intent to distribute as a felony. If the defendant saw the criminal complaint, it plainly stated that the punishment for possession of cocaine with the intent to distribute was up to ten years in State prison. Finally, the defendant filed his motion to withdraw within one month of being charged with new crimes while on probation. As the judge aptly pointed out, this "would seem to suggest that the reasons for vacating the plea is other than simply the job search or the DNA requirement [caused by the felony conviction]." Accordingly, we discern no error in the judge's conclusion that the plea was valid.
3. Ineffective assistance of counsel. "In the context of a motion to withdraw a guilty plea, .... [t]he defendant ... has the burden of demonstrating a reasonable probability that, but for counsel's ineffective assistance, he or she would not have pleaded guilty and instead would have insisted on going to trial." Commonwealth v. Henry, 488 Mass. 484, 495-496 (2021). "First, ‘the defendant must aver that to be the case.’ " Al Kenani, 100 Mass. App. Ct. at 295-296, quoting Commonwealth v. Clarke, 460 Mass. 30, 47 (2011). The analysis comes to a halt at this step, as the defendant did not assert in his affidavit that he would have gone to trial had he known that the crimes in question were felonies. Moreover, as the judge pointed out, the defendant has presented no particularly dire consequences from this plea, merely that he was required to provide a deoxyribonucleic acid sample and that he had "not been able to get a job despite great efforts to do so." Accordingly, we discern no error in the judge's conclusion that the defendant failed to demonstrate that he had received ineffective assistance of counsel.
On the day of the plea, the case was on for a jury trial, and jurors were available.
For these reasons, we also reject the defendant's freestanding argument that allowing the plea to stand "is not in the interests of justice."
Order denying motion to vacate convictions affirmed.