Com. v. Fernandes

• Decision Date: 09 January 1984
• Citation: 390 Mass. 714,459 N.E.2d 787
• Parties: COMMONWEALTH v. Peter S. FERNANDES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 787

459 N.E.2d 787

390 Mass. 714

COMMONWEALTH v. Peter S. FERNANDES.

Supreme Judicial Court of Massachusetts Barnstable.

Argued May 6, 1983.

Decided Jan. 9, 1984.

David C. Casey, Boston, for defendant.

Charles A. Morano, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendant pleaded guilty to kidnapping, G.L. c. 265, § 26, assault by means of a dangerous weapon, G.L. c. 265, § 15B, and assault and battery, G.L. c. 265, § 13A. A judge in the Superior Court sentenced him to serve five years and one day at the Massachusetts Correctional Institution at Concord on the indictment charging kidnapping. The defendant was placed on probation on the other two indictments commencing from and after completion of the sentence imposed on the kidnapping charge.

While he was still incarcerated, having served more than eight months of his sentence, the defendant, through new counsel, filed a motion for a new trial of each indictment. ¹ "A motion for new trial is the appropriate device for attacking the validity of a guilty plea. Commonwealth v. Penrose, 363 Mass. 677, 681 (1973)." Commonwealth v. Huot, 380 Mass. 403, 406, 403 N.E.2d 411 (1980). ² The thrust of the motion was that the plea procedure was defective and that the pleas were not voluntary. The judge denied the motion without hearing testimony or reporting findings. The defendant appealed and we transferred the appeal to this court on our own motion. ³ We agree with the defendant that the plea procedure was defective and that he is entitled to a new trial. Therefore, we reverse the defendant's convictions and we remand this case for trial or plea.

"Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1 [84 S.Ct. 1489, 12 L.Ed.2d 653] [1964]. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145 [88 S.Ct. 1444, 20 L.Ed.2d 491] [1968]. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400 [85 S.Ct. 1065, 13 L.Ed.2d 923] [1965]." Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). Because a plea of guilty involves these constitutional rights, the plea is valid only when the defendant offers it voluntarily, with sufficient awareness of the relevant circumstances, Brady v. United States, 397 U.S. 742, 748-749, 90 S.Ct. 1463, 1468-69, 25 L.Ed.2d 747 (1970), and with the advice of competent counsel. Id. at 758, 90 S.Ct. at 1474. Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962). Salkay v. Wainwright, 552 F.2d 151, 153 (5th Cir.1977). Colson v. Smith, 438 F.2d 1075, 1078-1079 (5th Cir.1971).

That these conditions have been met must be shown affirmatively on the record. Boykin v. Alabama, supra 395 U.S. at 242-244, 89 S.Ct. at 1711-13. As we observed in Commonwealth v. Foster, 368 Mass. 100, 102, 330 N.E.2d 155 (1975), Boykin holds that "as a matter of constitutional due process, a guilty plea should not be accepted, and if accepted must be later set aside, unless the record shows affirmatively that the defendant entered the plea freely and understandingly." We also concluded in Commonwealth v. Foster, supra at 103-108, 330 N.E.2d 155, that Boykin holds that constitutional due process requires that the affirmative showing must be made and recorded at the time the judge accepts the plea. Lastly, we stated in Foster, supra at 107, 330 N.E.2d 155, that this requires "a continuing effort on the part of trial judges, with the help of counsel, so to direct their questions as to make them a real probe of the defendant's mind .... It is not to become a 'litany' but is to attempt a live evaluation of whether the plea has been sufficiently meditated by the defendant with guidance of counsel, and whether it is not being extracted from the defendant under undue pressure" (emphasis added).

The record here shows that at the plea proceeding the defendant offered to plead guilty to the several indictments. The prosecutor then stated in open court the factual basis for the charges. He stated that shortly after midnight on January 16, 1981, the female victim was walking home from a bus stop at the Otis Rotary in Bourne. The defendant pulled up next to her in an automobile and asked her whether she wanted a ride. When she declined the defendant forced the victim at knife point to enter the automobile. The defendant then drove on, holding the knife in a threatening manner. He told her to take off her coat and knapsack. She had removed her knapsack when the automobile began to skid and slow down. At that time the victim jumped out of the car. Thereafter, she went to the police.

The prosecutor further told the court that the victim described the automobile to the police and later identified it when she was taken by the police to see it. The police spoke to the defendant on two occasions. On the first occasion the defendant denied any involvement in the incident. On the second occasion, the defendant admitted that the victim had been in the car, but said that she had jumped out of his car for no reason. He also told the police where the victim's belongings that she had left in the car could be located.

After the prosecutor completed his statement of facts, the following colloquy occurred:

THE JUDGE: "What do you say about this, Mr. Fernandes? Did you hear that?"

THE DEFENDANT: "Yes, I did, your Honor."

THE JUDGE: "What do you say about it? Is that how it happened?"

THE DEFENDANT: "Yes."

THE JUDGE: "Anything you want to add to it?"

THE DEFENDANT: "No."

THE JUDGE: "Anything that was said that isn't true?"

THE DEFENDANT: "No."

THE JUDGE: "Anything further that you want to tell me about?"

THE DEFENDANT: "No."

THE JUDGE: "Who is your lawyer?"

THE DEFENDANT: "Mr. McMahon."

THE JUDGE: "How long has he represented you?"

THE DEFENDANT: "I called him, his office, the night I was arrested."

THE JUDGE: "You understand you have a right to a jury trial?"

THE DEFENDANT: "Yes."

THE JUDGE: "You can waive a jury and try it to a judge alone?"

THE DEFENDANT: "Yes."

THE JUDGE: "You understand you have a right to have your lawyer cross-examine anybody who testifies against you?"

THE DEFENDANT: "I do."

THE JUDGE: "You don't have to tell me anything. You have no reason to incriminate yourself, except for this plea of guilty. Do you understand that?"

THE DEFENDANT: "I do."

THE JUDGE: "Why are you doing this? Is this the way it happened?"

THE DEFENDANT: "Yes."

THE JUDGE: "How far did you go in school?"

THE DEFENDANT: "I finished high school."

THE JUDGE: "Any trouble understanding me?"

THE DEFENDANT: "I understand you all."

THE JUDGE: "Do you know what the penalty is for kidnapping?"

THE DEFENDANT: "I guess life."

THE JUDGE: "Up to twenty years. Assault and battery with a dangerous weapon is ten, and assault and battery is two and a half. Knowing all that, you still want me to take your plea?"

THE DEFENDANT: "I do."

There was no further colloquy with the defendant. The judge imposed the sentence recommended by the prosecutor and agreed to by defense counsel.

This record does not affirmatively show that the defendant tendered the plea freely and understandingly. The judge made no inquiry whether the defendant had the benefit of a satisfactory discussion with counsel about the options realistically available to him. Furthermore, although the judge made adequate inquiry about the factual basis of the charges, the judge did not specifically inquire whether threats were made or inducements were offered that might have deprived the defendant's decision to plead guilty of its voluntariness. Although an inquiry concerning the factual basis of a charge "can be of significant assistance to the judge in the performance of his duty to ensure that the plea is voluntarily and intelligently made," Commonwealth v. Morrow, 363 Mass. 601, 608, 296 N.E.2d 468 (1973), such an inquiry does not by itself demonstrate voluntariness. The judge is required by Mass.R.Crim.P. 12(c)(5), 378 Mass. 866 (1979), to "conduct a hearing to determine the voluntariness of the plea and the factual basis of the charge" (emphasis added). Voluntariness and factual basis are distinct concepts.

After the defendant admitted that the prosecutor's statement of the facts was accurate, the judge asked the defendant if there was anything further the defendant wanted to tell him, and the defendant answered, "No." The judge also asked: "Why are you doing this? Is this the way it happened?" The defendant's response was, "Yes." These questions and answers are as close as the colloquy came to an affirmative showing that the plea of guilty was tendered freely and understandingly. This was not close enough to satisfy constitutional requirements. The colloquy did not adequately focus on the question whether there were any threats or inducements that might have led the defendant to admit the facts recited by the prosecutor. Therefore, the colloquy did not satisfy the due process requirement that there be a "real probe of the defendant's mind" to determine whether the plea "is not being extracted from the defendant under undue pressure." Commonwealth v. Foster, 368 Mass. 100, 107, 330 N.E.2d 155 (1975). ⁴

The defendant's contentions here illustrate the reasons for the constitutional rule announced in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and amplified in Commonwealth v. Foster, supra, that an affirmative showing of voluntariness must be made on the record contemporaneously with the taking of the plea. The defendant claims to have had no prior criminal record. He contends that on the day before the trial was to begin his counsel...