Com. v. Furr

• Decision Date: 12 June 2009
• Docket Number: SJC-10281.
• Citation: 454 Mass. 101,907 N.E.2d 664
• Parties: COMMONWEALTH v. Willie FURR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

907 N.E.2d 664

454 Mass. 101

COMMONWEALTH v. Willie FURR.

SJC-10281.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 3, 2009.

Decided June 12, 2009.

Dennis Shedd, Lexington, for the defendant.

Helle Sachse, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

COWIN, J.

The defendant, Willie Furr, appeals from the denial of his motion to withdraw his plea of guilty¹ to charges arising out of a robbery in which he participated in 1997. The defendant claims that his motion should have been allowed because the colloquy conducted during the plea hearing did not adequately ensure that his plea was made intelligently and voluntarily, and because his plea was the product of improper coercion. We affirm the denial of the defendant's motion.

Facts and proceedings. We summarize the facts recited by the Commonwealth and admitted by the defendant at the plea hearing. In 1997, in the parking lot of a convenience store in the Dorchester section of Boston, the fourteen year old defendant and his three teenage companions approached the victim as he was returning to his car. One of the defendant's companions pressed a sawed-off rifle to the victim's ribs and forced him into the car, while another threatened the victim with a knife. The defendant's companions took money from the victim and distributed it among themselves, including the defendant. The defendant drove the victim and his associates for a short distance and parked the car. The defendant took the victim's bank automated teller machine (ATM) card and code. The other occupants subsequently took the victim to an ATM and forced him to withdraw money from his bank account while the defendant remained with the car. When a police car approached, the defendant attempted to escape in the victim's car. During a police chase, the defendant "wrecked" the car and escaped on foot. The victim later identified the defendant from a photographic array.

The defendant was indicted as a youthful offender² on charges of kidnapping, armed robbery, carjacking, and assault and battery by means of a dangerous weapon.³ The defendant and his companions were also charged with another armed robbery that occurred two days after the ATM incident. The defendant pleaded guilty to all charges stemming from the ATM incident and the second armed robbery.⁴ The plea hearing was held in 1998 before a Juvenile Court judge, with the defendant's two adult brothers in attendance.

Because it is the substance of the plea colloquy that the defendant challenges, we set forth that colloquy in detail. The judge first informed the defendant of his rights to trial by jury, to confront and cross-examine the Commonwealth's witnesses, and to testify or have other witnesses testify on his behalf. The judge also told the defendant that he had the right to testify, but that "in the event ... you chose not to [testify] and your attorneys asked me, I would inform the jury that you have a right not to testify and your lack of testimony should not be held against you."⁵ The judge stated that the maximum penalty for the charged offenses was life imprisonment, and that, "[b]y making an admission to sufficient facts ... what you're doing is admitting that the Commonwealth [has] fact[s] sufficient against you, so that I could find you guilty of these offenses." The prosecutor next recited the facts set forth supra.

The defendant said that he understood the facts recited by the Commonwealth and admitted to them. The judge asked the defendant his age and level of education, and inquired whether he was under the influence of drugs or alcohol, seeing a psychiatrist, or suffering from any mental disease. The judge inquired about the presence of the defendant's brothers in court and asked whether the defendant was satisfied with the representation he had received from his lawyer. The defendant answered that he was.

The judge commented that he "was surprised at the reasonableness of the recommendation of the Commonwealth," describing the recommendation as "probably ... too reasonable" given the seriousness of the offenses. The judge then adopted the Commonwealth's recommendation that the defendant be committed to the custody of the Department of Youth Services until age twenty-one, with a two-year concurrent commitment to a house of correction suspended until the defendant's twenty-first birthday. The judge explained the details of the sentence twice. The defendant said that he understood the terms of the sentence and agreed to them. The judge determined that the defendant's plea was both intelligent and voluntary. The defendant was given the opportunity to withdraw his plea, which he refused. The judge accepted the plea and imposed the recommended sentence.⁶ The judge did not explain the elements of the charged offenses to the defendant, nor did he ask whether the defendant's attorney had done so. The judge also did not inquire whether the defendant's plea had been coerced or was the result of improper inducements.

In 1999, the defendant was arrested following a shooting incident at his high school, where he was discovered in possession of an unlicensed firearm with a defaced serial number. As a result, he was convicted as a youthful offender of unlawful possession of a firearm, receiving a firearm with a defaced serial number, attempted intimidation of a witness, and obstruction of justice. He was convicted as well of being an armed career criminal. See Commonwealth v. Furr, 58 Mass.App. Ct. 155, 157-160 788 N.E.2d 592 (2003). See also G.L. c. 269, § 10G.⁷ He was sentenced to from eight to twelve years in prison. The charges from the ATM incident to which the defendant had pleaded guilty in 1998 served as the necessary predicate offenses for the armed career criminal charge. See Commonwealth v. Furr, supra at 156-162, 788 N.E.2d 592.

In 2006, after exhausting avenues for attacking his armed career criminal conviction in the Federal and State courts, the defendant filed the present motion. Attached to the motion were affidavits from the defendant's two adult brothers, his mother, and himself. The defendant claimed in his affidavit that his "lawyer did not explain the elements of the crimes to [the defendant] and he never mentioned the joint venture theory." The defendant also stated that he "felt pressured to offer a plea" because his attorney "told [him] several times that [he] faced life in prison if the case went to trial ... [The attorney] did not tell [the defendant] that [he] was unlikely to get a life sentence even if [he] were found guilty at a trial." The defendant averred that he received similar advice from one of his adult brothers who had attended the plea hearing. The defendant further stated he "was only 14 years old and the thought of spending life in prison scared [him]."

The motion was denied by the same judge who had accepted the plea nine years earlier. The judge did not hold a hearing or make any written findings or rulings. The Appeals Court affirmed the denial of the defendant's motion in an unpublished memorandum and order pursuant to its rule 1:28. See Commonwealth v. Furr, 72 Mass.App.Ct. 1108, 891 N.E.2d 268 (2008). We granted further appellate review. We affirm the judge's order denying the defendant's motion.

Discussion. The defendant contends that the plea colloquy did not adequately ensure that his plea was intelligently or voluntarily made. The defendant argues in addition that his colloquy was inadequate to ensure his plea was free from coercion because the judge failed to inquire whether he had been threatened or induced to plead guilty. Finally, the defendant claims that his plea was the product of actual coercion stemming from the advice of his attorney and his older brother that he should plead guilty because he "faced a life sentence" if the case went to trial.⁸

A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001). Commonwealth v. Colon, 439 Mass. 519, 524, 789 N.E.2d 566 (2003). A judge may grant the defendant's motion "only `if it appears that justice may not have been done.'" Commonwealth v. Desrosier, 56 Mass.App.Ct. 348, 353-354, 778 N.E.2d 1 (2002), quoting rule 30(b). The judge may decide the motion based solely on the submitted affidavits, and the weight and credibility to be accorded those affidavits are within the judge's discretion. See Commonwealth v. Pingaro, 44 Mass.App.Ct. 41, 48, 693 N.E.2d 690 (1997). The judge need not believe such affidavits even if they are undisputed. Id. "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, supra, quoting Commonwealth v. Russin, 420 Mass. 309, 318, 649 N.E.2d 750 (1995).

Due process requires that "a guilty plea should not be accepted, and if accepted must be later set aside," unless the contemporaneous record contains an affirmative showing that the defendant's plea was intelligently and voluntarily made. Commonwealth v. Foster, 368 Mass. 100, 102, 330 N.E.2d 155 (1975), citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See Commonwealth v. Fernandes, 390 Mass. 714, 719, 459 N.E.2d 787 (1984). A judge should not accept a guilty plea "unless satisfied that the plea is voluntary and that the defendant understands the nature of the charges." Commonwealth v. Quinones, 414 Mass. 423, 431, 608 N.E.2d 724 (1993). See Mass. R. Crim. P. 12, as appearing in 442 Mass. 1511 (2004). The burden is on the Commonwealth to show that the defendant's plea was intelligently and voluntarily made. See Commonwealth v. Duquette, 386 Mass. 834, 841, 438 N.E.2d 334 (1982), and cases cited.

1. Intelligence. The defendant claims that the Commonwealth's recitation of...