Com. v. Lopez

Decision Date06 February 1998
Citation426 Mass. 657,690 N.E.2d 809
PartiesCOMMONWEALTH v. Albert LOPEZ.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Sam Silverman, Lexington, for defendant.

Sandra L. Hautanen, Assistant District Attorney, for Com.

Elizabeth A. Lunt and William B. VanLonkhuyzen, Boston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

GREANEY, Justice.

We transferred this case to this court on our own motion. We consider in this case, and in Commonwealth v. Grant, 426 Mass. 667, 689 N.E.2d 1336 (1998), the standards that should govern a judge's consideration of a defendant's motion to withdraw a guilty plea under Mass. R.Crim. P. 30(b), 378 Mass. 900 (1979), when the motion is filed in a sentencing enhancement context and no record of the plea exists because the means of creating that record have been destroyed pursuant to court rule. We conclude that a judge in the Superior Court acted properly when he denied four separate motions by the defendant to withdraw his pleas of guilty which had been tendered and accepted between ten and nineteen years before the motions were filed.

1. Represented by counsel, the defendant entered guilty pleas in the Superior Court in 1976, 1979, 1982, and 1985, to various crimes and was sentenced on his pleas. 1 In 1995 the defendant was convicted in the United States District Court for the District of Massachusetts on Federal narcotics charges and related offenses. When the defendant was sentenced in that court, his record of State convictions was applied for sentence enhancement purposes provided for by Federal law.

On September 7, 1995, shortly after his Federal sentencing, the defendant filed four virtually identical motions, seeking to withdraw his guilty pleas, pursuant to Mass. R.Crim. P. 30(b), alleging, in general terms, that these pleas were invalid because they were made "without knowledge of the consequences of [each] plea and [the] ensuing conviction," and "without adequate inquiry into the willingness and voluntariness of the plea[s]." Each motion, except the one pertaining to the 1985 pleas, was accompanied by an affidavit of the defendant stating, in pertinent part, that he had no recollection of being asked about the consequences of his pleas. The defendant made no effort to reconstruct the record of his 1976, 1979, and 1982 guilty pleas prior to filing his motions. 2 The Commonwealth also did not attempt to reconstruct the plea hearings. A judge in the Superior Court denied the defendant's motions without a hearing.

In connection with this appeal, the Commonwealth filed a motion (which has been allowed) to expand the record to include affidavits from the assistant district attorney arguing the appeal and the assistant district attorney who handled the 1982 plea. The former affidavit (from the Commonwealth's appellate counsel) asserts, in relevant part, that (a) the judges who accepted the defendant's pleas in 1976, 1979, and 1982 are deceased; (b) the tape recordings or transcripts of the defendant's 1976, 1979, and 1982 plea hearings are missing and are believed to have been destroyed pursuant to court rules 3; (c) there is no evidence identifying the court reporter who was present at the defendant's 1976 plea hearing; and (d) the court reporters who recorded the 1979 and 1982 plea hearings are deceased. The affidavit from the trial prosecutor states, with respect to the defendant's 1982 plea, that he cannot remember that plea's particulars, except for the fact that he was familiar with the customary plea practices of the judge who took that plea, which included asking the defendant the questions contained in the standard plea colloquy consistently used by Superior Court judges. The prosecutor also stated in his affidavit that he would have noticed if there were any variances or deficiencies in the plea colloquy afforded the defendant.

2. As a general proposition of constitutional law, a guilty plea may be withdrawn or nullified unless it does not appear affirmatively that the defendant entered the plea freely and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709 1712, 23 L.Ed.2d 274 (1969). See Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468-1469, 25 L.Ed.2d 747 (1970); Commonwealth v. Foster, 368 Mass. 100, 106, 330 N.E.2d 155 (1975). Rule 12(c)(3) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 866 (1979), requires that a defendant be informed on the record of the three constitutional rights which are waived by a guilty plea: the right to trial, the right to confront one's accusers, and the privilege against self-incrimination. See Boykin v. Alabama, supra at 243, 89 S.Ct. at 1712; Commonwealth v. Lewis, 399 Mass. 761, 764, 506 N.E.2d 891 (1987). Moreover, the plea record must demonstrate either that the defendant was advised of the elements of the offense or that he admitted facts constituting the unexplained elements. See Henderson v. Morgan, 426 U.S. 637, 646, 96 S.Ct. 2253, 2258, 49 L.Ed.2d 108 (1976); Commonwealth v. Colantoni, 396 Mass. 672, 678-679, 488 N.E.2d 394 (1986). Finally, the plea record must demonstrate that the defendant pleaded guilty voluntarily and not in response to threats or undue pressure. See Commonwealth v. Foster, supra at 107, 330 N.E.2d 155.

The burden is ordinarily on the Commonwealth to show that a challenged guilty plea was understandingly and voluntarily made. Commonwealth v. Duquette, 386 Mass. 834, 841, 438 N.E.2d 334 (1982), and cases cited. If the contemporaneous record of the plea proceedings is unavailable, "it may be reconstructed through testimony or other suitable proof of what happened in court when the guilty plea was taken." Commonwealth v. Quinones, 414 Mass. 423, 432, 608 N.E.2d 724 (1993), and cases cited. The defendant relies on these principles to argue, in a straightforward manner, that, because no record of three sets of his pleas exists (the 1976, 1979, and 1982 pleas), the Commonwealth cannot satisfy its burden, and, as a consequence, his motions to withdraw those pleas must be allowed. 4

The stated principles are predicated on the assumption that the Commonwealth has within its control the means to produce, or conveniently reconstruct, the record of a plea, which then can be expeditiously consulted to refute or credit the defendant's claims of invalidity. See, e.g., Commonwealth v. Quinones, supra (stenographic notes of the proceeding at which guilty pleas were accepted had been stolen, but trial judge was able to reconstruct the record based on his memory of the plea colloquy and reliance on his regular practice in the taking of guilty pleas); Commonwealth v. Foster, supra at 102, 330 N.E.2d 155 (transcript confirmed that judge had made no inquiry as to knowing and voluntary nature of plea); Commonwealth v. Correa, 43 Mass.App.Ct. 714, 716-717 & n. 4, 686 N.E.2d 213 (1997) (transcript of plea colloquy showed no adequate inquiry by judge). These cases represent a situation where an actual record exists, or a record has become unavailable through no fault of the defendant, and the Commonwealth has provided a reconstruction.

A far different situation exists, however, when the defendant leaves his guilty pleas unchallenged for a lengthy period of time, so that the contemporaneous record of the plea is lost (by proper destruction of the stenographer's notes or erasure of the tape recording pursuant to court rules), and means of reconstruction are made impractical or impossible due to the death or retirement of judges and court reporters, the unavailability of witnesses, the inherent weaknesses and failures of recollection, and other factors commonly associated with the passage of time. At this point, the absence of a record, and the inability effectively to reconstruct it, may be directly attributed to the defendant's delay and may be said to be the defendant's fault. In such a case, 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. In assessing such a challenge, a judge is not required to accept the defendant's self-serving affidavit, alleging constitutional defects in conclusory terms, as sufficient to satisfy the defendant's burden, under rule 30(b), to produce " 'a credible reason [to withdraw the plea] which outweighs the risk of prejudice to the Commonwealth.' " Commonwealth v. Fanelli, 412 Mass. 497, 504, 590 N.E.2d 186 (1992), quoting Commonwealth v. DeMarco, 387 Mass. 481, 486, 440 N.E.2d 1282 (1982). This principle was aptly described in the recent decision of Commonwealth v. Pingaro, 44 Mass.App.Ct. 41, 49-50, 693 N.E.2d 690 (1997), in the following terms:

"A defendant's naked claim that he did not receive a constitutionally adequate guilty plea colloquy does not automatically thrust upon the Commonwealth the burden of proving the existence of a contemporaneous record establishing that the plea was entered knowingly and voluntarily. Rather, the initial burden is on the moving defendant to present some articulable reason which the motion judge deems a credible indicator that the presumptively proper guilty plea proceedings were constitutionally defective, above and beyond a movant's 'credulity straining' contentions regarding 'questions the judge did not ask' almost sixteen years earlier, Commonwealth v. Duest, 30 Mass.App.Ct. 623, 627 (1991) ... and reliance upon the mere nonexistence of a transcript of the plea proceedings."

Integral to this reasoning is the presumption of regularity and the important policy of finality. Rule 30(b) motions, like the motions in this case, filed after conviction and sentencing are considered collateral attacks on final decisions. See Commonwealth v. Quinones, supra at 433 n. 7, 608 N.E.2d 724; Commonwealth v. Nolan, 19 Mass.App.Ct....

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