Com. v. Correa

• Decision Date: 22 October 1997
• Docket Number: No. 96-P-1173,96-P-1173
• Parties: COMMONWEALTH v. Nelson R. CORREA.
• Court: Appeals Court of Massachusetts

Page 213

686 N.E.2d 213

43 Mass.App.Ct. 714

COMMONWEALTH v. Nelson R. CORREA.

No. 96-P-1173.

Appeals Court of Massachusetts Essex.

Argued April 7, 1997.

Decided Oct. 22, 1997.

Elizabeth A. Lunt, Boston, for defendant.

Elin H. Graydon, Assistant District Attorney, for Com.

Before DREBEN, KAPLAN and LENK, JJ.

LENK, Justice.

On October 28, 1992, the defendant pleaded guilty in the District Court to eleven charges contained in five complaints issued against him. ¹ After he was indicted in January, 1996, in the United States District Court for the crime of reentry after deportation in violation of 8 U.S.C. § 1326 (1994), the defendant, on June 4, 1996, moved to withdraw his 1992 State court guilty pleas, claiming that the plea colloquy had been inadequate. The defendant appeals from the denial of his motion.

The transcript of the plea colloquy at issue reveals the following. ² The judge asked the defendant if he understood that he was waiving his right to a jury trial and his right to cross-examine the Commonwealth's witnesses. He asked whether the defendant understood that conviction of the offenses could result in deportation to his country of origin, withholding of citizenship were he to apply for it, or the refusal to readmit him to this country should he leave it. Receiving affirmative replies to the foregoing, the judge inquired of the defendant whether he had discussed the plea and its consequences with counsel, was satisfied with the advice given him, and believed that his attorney had acted in his best interests. The defendant again responded in the affirmative. Based on this information, the judge determined the defendant's plea to be voluntary and intelligent. The judge then asked counsel if they would waive the reading of the facts into the record, to which they assented, agreeing to "plead to the faces of the complaints as they exist and appear before the court." The judge thereupon accepted the defendant's plea, found him guilty of the criminal offenses charged, and imposed sentence. ³

The defendant now complains that his pleas were constitutionally invalid insofar as he did not admit or acknowledge the factual bases of the charges, was not informed by the judge of the nature, elements, or penal consequences of the charges, was not advised of his right to a nonjury trial or his privilege against self incrimination, and was not inquired of as to the voluntariness of his plea.

A postconviction motion to withdraw a plea is treated as a motion for a new trial. Commonwealth v. Huot, 380 Mass. 403, 406, 403 N.E.2d 411 (1980). Accordingly, a judge may grant a defendant's motion to withdraw a guilty plea if it appears that justice may not have been done. Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). Commonwealth v. DeMarco, 387 Mass. 481, 482-486, 440 N.E.2d 1282 (1982). The motion is addressed to the sound discretion of the judge, Commonwealth v. Smith, 381 Mass. 141, 142, 407 N.E.2d 1291 (1980), and the judge's disposition of the motion will not be reversed for abuse of discretion unless it is manifestly unjust, Commonwealth v. Little, 384 Mass. 262, 269, 424 N.E.2d 504 (1981), or unless the plea colloquy was infected with prejudicial constitutional error. Commonwealth v. Stewart, 383 Mass. 253, 257, 418 N.E.2d 1219 (1981).

Where a defendant wishing to withdraw a guilty plea challenges the voluntary or intelligent nature of his plea, it is ordinarily the Commonwealth's burden to show by means of a contemporaneous or reconstructed record of the plea that it was entered understandingly and voluntarily. ⁴ Commonwealth v. Quinones, 414 Mass. 423, 431-432, 608 N.E.2d 724 (1993); Commonwealth v. Duest, 30 Mass.App.Ct. 623, 625, 572 N.E.2d 572 (1991). See Mass.R.Crim.P. 12, 378 Mass. 866 (1979). The contemporaneous record of the defendant's plea colloquy here establishes that the colloquy was fatally deficient.

The judge must determine by means of an adequate colloquy that the plea tendered is both intelligently and voluntarily made. Commonwealth v. Duest, 30 Mass.App.Ct. at 631, 572 N.E.2d 572. A plea is intelligently made when the defendant has knowledge of the elements of the charges against him. See Mass.R.Crim.P. 12(c)(5)(A), 378 Mass. 869 (1979); Commonwealth v. Fernandes, 390 Mass. 714, 719, 459 N.E.2d 787 (1984). Otherwise put, the defendant must receive real notice of the true nature of the charge to which he pleads guilty. Commonwealth v. Sullivan, 385 Mass. 497, 509, 432 N.E.2d 684 (1982). There must be an explanation by the judge or defense counsel of the elements of the crimes charged or an admission by the defendant to the facts constituting those crimes. See Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); Commonwealth v. Huot, 380 Mass. at 406-410, 403 N.E.2d 411. This requirement can be satisfied in one of several ways: (1) by the judge explaining to the defendant the elements of the crime; (2) by counsel's representation that she has explained to the defendant the elements he admits by his plea; or, (3) by the defendant's stated admission to facts recited during the colloquy which constitute the unexplained elements. Commonwealth v. Colantoni, 396 Mass. 672, 678-679, 488 N.E.2d 394 (1986). ⁵ Furthermore, an intelligent plea requires that the defendant have knowledge of the procedural protections that he would forego by pleading guilty. See Commonwealth v. Duquette, 386 Mass. 834, 841, 438 N.E.2d 334 (1982). The judge must ensure that the defendant is informed, on the record and in open court, of the three constitutional rights which are waived by a plea of guilty: "the right to trial, the right to confront one's accusers, and the privilege against self-incrimination." Ibid.

The concept of voluntariness, in turn, requires that the defendant tender the plea free "from coercion, duress, or improper inducements." Commonwealth v. Duest, 30 Mass.App.Ct. at 631, 572 N.E.2d 572. To determine the voluntariness of the defendant's plea, the judge should conduct a real probe of the defendant's mind. Commonwealth v. Fernandes, 390 Mass. at 719, 459 N.E.2d 787. The judge should determine whether the plea was "being extracted from the defendant under undue pressure," ibid, quoting from Commonwealth v. Foster, 368 Mass. 100, 107, 330 N.E.2d 155 (1975), whether the defendant was being treated for or was aware of any mental illness from which he may be suffering, Commonwealth v. Blackstone, 19 Mass.App.Ct. 209, 211-212, 472 N.E.2d 1370 (1985), and whether the defendant was under the influence of alcohol or drugs.

Although in order to accept a defendant's guilty plea the judge must determine that the plea has been tendered both intelligently and voluntarily, certain omissions from the colloquy requirements have nonetheless been tolerated when a defendant collaterally attacks his plea. See Commonwealth v. Dozier, 24 Mass.App.Ct. 961, 511 N.E.2d 35 (1987) (although colloquy omits a warning that by offering pleas of guilty a defendant waives his privilege against self-incrimination, that omission is not necessarily fatal to an intelligent plea). In Federal court, a defendant seeking to set aside a guilty plea in a collateral attack must at the very least show that a proper colloquy would have made a difference in his decision to plead guilty. Cepulonis v. Ponte, 699 F.2d 573, 577-578 (1st Cir.1983). Our appellate decisions, however, have to date adopted this materiality requirement only where the defendant's collateral attack is based upon omissions in the colloquy relating to the defendant's waiver of his intra-trial rights, e.g., privilege against self-incrimination, right to confront witnesses. See Commonwealth v. Nolan, 19 Mass.App.Ct. 491, 500, 475 N.E.2d 763 (1985) (where the deficiencies in the colloquy relate to the defendant's waiver of his intra-trial rights, the defendant is required to show with some plausibility that it would have made a difference to him in deciding about a plea if he had been told about these rights). Thus, even in a situation where the record of the plea colloquy shows that the trial judge, contrary to Mass.R.Crim.P. 12(c)(3)(A), 378 Mass. 868 (1979), ⁶ failed to inform the defendant that by his pleas he was waiving his right to confront witnesses and his privilege against self-incrimination, the motion judge may conclude that the pleas were nonetheless voluntary and intelligent. Commonwealth v. Nolan, 16 Mass.App.Ct. 994, 995, 454 N.E.2d 1280 (1983).

Where the deficiencies in the plea colloquy arise from a failure to inquire into the voluntariness of the plea or the failure to ascertain that the defendant has knowledge of the elements of the charges against him, however, we have not required a showing of materiality. The defendant does not allege that his plea was involuntary or that he was incapacitated or coerced in any way. In the absence of any allegation that the defendant's plea was the product of coercion or threats, the judge may infer voluntariness from the defendant's awareness of the favorable consequences of his plea. ⁷ Commonwealth v. Russell, 37 Mass.App.Ct. 152, 157, 638 N.E.2d 37 (1994). Having received a most favorable sentence--nine months to be served concurrently with a sentence he was then serving--the record supports a conclusion that the defendant was aware of the penal consequences of his plea and that the voluntariness of the plea may thereby be inferred.

The defendant does allege, however, that the judge failed to ascertain that he had knowledge of the elements of the charges against him; the record bears this out. Nothing more need be shown to establish the inadequacy of the colloquy for constitutional purposes. Henderson v. Morgan, 426 U.S. at 645-646, 96 S.Ct. at 2257-2258. Cf. Commonwealth v. McGuirk, 376 Mass. 338, 344, 380 N.E.2d 662 (1978) (if defendant was not informed that malice aforethought is an element of murder in the second degree, it would have been error to accept his guilty plea and to...