Com. v. Tavernier

• Decision Date: 01 March 2010
• Docket Number: No. 09-P-127.,09-P-127.
• Citation: 76 Mass. App. Ct. 351,922 N.E.2d 166
• Parties: COMMONWEALTH v. Jayson A. TAVERNIER.
• Court: Appeals Court of Massachusetts

922 N.E.2d 166

76 Mass. App. Ct. 351

COMMONWEALTH v. Jayson A. TAVERNIER.

No. 09-P-127.

Appeals Court of Massachusetts.

March 1, 2010.

Argued November 4, 2009.

Decided March 1, 2010.

John M. Thompson for the defendant.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

Present: KANTROWITZ, DREBEN, & RUBIN, JJ.

KANTROWITZ, J.

Because of an inadequate plea colloquy, we are constrained to vacate nearly a score of guilty pleas. As two of the pleas were minimally sufficient, we affirm as to those charges.

Background. On May 12, 2004, the defendant, Jayson Tavernier, pleaded guilty to multiple charges contained in seven separate criminal complaints for criminal activity spanning a three and one-half year time period, and received an exceedingly generous fourteen-month sentence in a house of correction.¹

In 2007, the defendant was indicted in the United States District Court for the District of Massachusetts and charged with a single sale of fifty grams or more of crack cocaine. Facing enhanced sentencing as a result of his earlier convictions, the defendant filed, on March 17, 2008, motions for a new trial on each of the seven complaints on which he had entered guilty pleas in 2004. The same judge who had accepted the guilty pleas heard and subsequently denied all of the motions for a new trial. The defendant filed timely appeals from the denial of the motions on each complaint.

On appeal, the defendant argues that the motion judge abused his discretion or committed an error of law because the contemporaneous record did not establish that the defendant (1) personally articulated a guilty plea to any of the charges of which he was convicted and (2) understood the law in relation to the facts of any of the charges of which he was convicted. In its brief, the Commonwealth concedes that the majority of the convictions should be vacated, but argues that the defendant intelligently pleaded guilty to seven of the charges.

In his denial of the defendant's motions, the judge below characterized the entire colloquy as "completely adequate." The record reveals otherwise; our review indicates that only the two November 28, 2000, charges, possession of a class B substance with intent to distribute and resisting arrest, barely pass scrutiny. The guilty pleas on the other charges must be vacated.

Prior to exploring the seven complaints, a brief overview of the applicable law is in order. As the law is fairly well known in this area, we need not go into it in any great depth.

Discussion. A defendant's guilty plea must be intelligently and voluntarily made. Commonwealth v. Furr, 454 Mass. 101, 106, 907 N.E.2d 664 (2009). "A defendant's plea is intelligent when made with understanding of the nature of the charges (understanding of the law in relation to the facts) and the consequences of his plea (the legal consequences and constitutional rights he forgoes by pleading guilty rather than proceeding to trial); it is voluntary when free from coercion, duress, or improper inducements." Commonwealth v. Hiskin, 68 Mass.App.Ct. 633, 638, 863 N.E.2d 978 (2007).

Intelligence of the plea. "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.... 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 [he] 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. Correa, 43 Mass.App.Ct. 714, 717, 686 N.E.2d 213 (1997). See Commonwealth v. Sherman, 451 Mass. 332, 335, 885 N.E.2d 122 (2008); Commonwealth v. Hiskin, 68 Mass.App. Ct. at 639, 863 N.E.2d 978. Here, neither the judge nor defense counsel² explained the elements of any of the charges; thus, we must determine, under the third prong, whether the defendant "explicitly admit[ted] to or acknowledge[d] any of the facts underlying the charges" as necessary to plead guilty. Commonwealth v. Correa, 43 Mass.App.Ct. at 719-720, 686 N.E.2d 213.

Plea colloquy. At the start of the plea colloquy the judge reviewed the various rights the defendant was relinquishing with his "pleading guilty." The judge ascertained that no one either forced the defendant to plead guilty or promised him anything "in order to convince you that you should plead guilty." The judge further ascertained that the defendant was not under the influence of alcohol or drugs. After this recitation, the judge asked the defendant whether he still wished to plead guilty, to which the defendant responded affirmatively.³

At that point the judge asked the prosecutor to provide a factual summary for each of the charges. What transpired during this aspect of the case comprises the heart of the defendant's appeal before us.

1. The November 28, 2000, charges (complaint 0023CR012797)⁴:

—possession of class B with intent to distribute (sentence of fourteen months)

—in a school zone (nol prossed)

—resisting arrest (six months concurrent)

Regarding these charges, the prosecutor informed the court that after receiving complaints from residents concerning drug sales, the police conducted surveillance at a location known to be in a high crime area. They saw the defendant engage in three hand-to-hand cash transactions with drive-up or walk-up customers, including one in which prior to the transaction he reached down the front of his pants and removed something, then manipulated it briefly before placing it back in his pants. Several minutes later, the officers approached the defendant, and after a "brief struggle," he was placed in custody. The officers seized $162 and a "rock bag of cocaine," which was in the defendant's underwear. The prosecutor concluded by stating that this substance "was tested and came back as a class B substance."

The judge then asked the defendant, "Now, do you agree, Mr. Tavernier, that that is the way things occurred that day?" to which the defendant replied, "Yes, I do." The judge also asked counsel for the defendant whether he would like to add anything. It appears that counsel had nothing to add,⁵ and the judge moved on to the next complaint.

"Central to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment." Commonwealth v. Hiskin, 68 Mass.App.Ct. at 639, 863 N.E.2d 978, quoting from Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Where a defendant admits "to facts recited during the colloquy which constitute the unexplained elements," Commonwealth v. Correa, 43 Mass.App.Ct. at 717, 686 N.E.2d 213, the omission of an element of the crime is not fatal to the plea. See Commonwealth v. McGuirk, 376 Mass. 338, 347, 380 N.E.2d 662 (1978), cert. denied, 439 U.S. 1120, 99 S.Ct. 1030, 59 L.Ed.2d 80 (1979) (admission that he struck first blow sufficient to satisfy element of intent to inflict injury); Commonwealth v. Sherman, 451 Mass. at 336-338, 885 N.E.2d 122 (admission he "forcibly raped" victim sufficient to satisfy missing element—sexual intercourse—based on common meaning of the term); Commonwealth v. Wiswall, 43 Mass.App.Ct. 722, 723, 686 N.E.2d 477 (1997) (phrase "assault with intent to kill" in guilty plea self-explanatory on element of intent); Commonwealth v. DeCologero, 49 Mass.App.Ct. 93, 97, 726 N.E.2d 444 (2000) (judge's use of term "marketing," along with statement as to amount Commonwealth would be required to prove, made cocaine-trafficking charge self-explanatory). Compare Commonwealth v. Hunt, 73 Mass.App.Ct. 616, 622, 900 N.E.2d 121 (2009).

Here, the defendant sufficiently admitted to the offered facts to support his guilty pleas on the November 28, 2000, charges. The two basic elements for conviction of possession with the intent to distribute cocaine are (1) knowingly possessing the drug and (2) intending to transfer it physically to another person. Commonwealth v. Clermy, 37 Mass.App. Ct. 774, 778, 643 N.E.2d 1059, S.C., 421 Mass. 325, 656 N.E.2d 1253 (1995). While the judge, somewhat awkwardly, referred to the charge as "possession to distribute B," leaving out the word "intent," the recitation of the charge together with the prosecutor's rendition of the facts adequately conveyed all of the elements. First, the prosecutor stated that the "rock bag of cocaine" found in the defendant's underwear tested positive "as a class B substance." Thus, the defendant knew that "B" meant cocaine. The defendant never contested the fact that the substance was indeed cocaine; by agreeing with the facts as recited by the prosecutor, he confirmed that he knowingly possessed cocaine at the time of his arrest.

Further, the defendant also agreed that the police had observed him conducting three drug sales. He never suggested that he was doing anything other than what the prosecutor stated, nor did he assert that the cocaine was for his personal use. Compare Commonwealth v. DeCologero, 49 Mass.App.Ct. at 97, 726 N.E.2d 444 ("[T]here is adequate evidence that the defendant understood the crime of trafficking in cocaine.... [T]he prosecutor recited a lengthy narrative of the evidence against the defendant, which encompassed all of the elements the Commonwealth was required to prove. Although it is true that the defendant never explicitly admitted to these facts, he nonetheless listened to them and subsequently chose to plead guilty"), with Commonwealth v. Andrews, 49 Mass.App.Ct. 201, 204, 728 N.E.2d 327 (2000) ("The facts as recited were ambiguous as to the defendant's intention in possessing the cocaine; the possession of 2.73 grams of cocaine, even packaged in eleven envelopes, does not, without more, clearly tend towards showing an intent to distribute").

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