Com. v. Williams

• Decision Date: 06 March 2008
• Docket Number: No. 07-P-122.,07-P-122.
• Citation: 881 N.E.2d 1148,71 Mass. App. Ct. 348
• Parties: COMMONWEALTH v. Robert E. WILLIAMS.
• Court: Appeals Court of Massachusetts

881 N.E.2d 1148

71 Mass. App. Ct. 348

COMMONWEALTH v. Robert E. WILLIAMS.

No. 07-P-122.

Appeals Court of Massachusetts, Norfolk.

Argued December 18, 2007.

Decided March 6, 2008.

David J. Barend for the defendant.

Tracey A. Cusick, Assistant District Attorney, for the Commonwealth.

Present: DUFFLY, GRAHAM, & KATZMANN, JJ.

KATZMANN, J.

After a jury was empanelled and just before trial was to begin, the defendant pleaded guilty to armed robbery, in violation of G.L. c. 265, § 17, and assault and battery by means of a dangerous weapon, in violation of G.L. c. 265, § 15A(b). The issue presented on appeal is whether the Superior Court judge who accepted the defendant's guilty pleas abused his discretion in denying the defendant's motion to withdraw those pleas based on a claim that they were not voluntary. We affirm.

Background. On November 17, 1999, the defendant was indicted on eleven charges arising from four separate incidents. At issue here are two charges alleging that on July 26, 1999, in Brookline, the defendant committed armed robbery, and assault and battery by means of a dangerous weapon, upon a female victim.

Between November 15, 2000, and April 12, 2001, the defendant or his counsel participated in a series of lobby conferences with the Commonwealth and several different Superior Court judges to discuss the possibility of the defendant's pleading guilty to the two charges. On at least one of these occasions, a Superior Court judge indicated that he would be inclined to impose a sentence of ten years to ten years and a day if the defendant pleaded guilty to the two charges. No agreement was reached, and after the Commonwealth's motion for joinder of all cases was denied, the two charges were scheduled for trial.

On June 18, 2001, the matter was called for trial before a pew Superior Court judge. At that time, the judge allowed the Commonwealth's motions in limine to introduce evidence of the defendant's statement to the police after his arrest, to introduce the victim's medical records, and to introduce evidence of several of the defendant's prior criminal convictions. The judge also denied the defendant's pro se motions, filed that day (and argued by his counsel at the judge's direction), to (a) continue the matter until a transcript of a motion to suppress hearing from a different proceeding could be obtained (in order to challenge voluntariness)¹; and (b) dismiss the charges pursuant to Mass. R.Crim.P. 36, as amended, 422 Mass. 1503 (1996). The judge then empanelled the jury.

On the next morning, June 19, 2001, as the jury were poised to enter the courtroom, and opening statements were set to begin, in a sidebar conference, the defendant, through counsel expressed to the judge his desire to explore the possibility of pleading guilty to the two indictments. In an ensuing discussion concerning potential sentences, the Commonwealth stated that, on a plea of guilty to just the two indictments set for trial that day, it would recommend a sentence of twelve to fifteen years from and after a sentence the defendant was then serving in Plymouth County; or, if the defendant pleaded guilty to all outstanding indictments, a slightly longer sentence to run concurrently with the twelve to fifteen year sentence, from and after the Plymouth County sentence. Defense counsel indicated that this was an increase in comparison to a potential sentence the defendant had previously passed over. The judge suggested that defense counsel discuss the sentencing possibilities with the defendant.

After a break of an unspecified duration, the parties returned to sidebar, where defense counsel conveyed the defendant's willingness to plead guilty to the two indictments, and that the defendant was not yet prepared to plead to the other outstanding indictments. A plea colloquy on the two indictments followed.

The judge opened the colloquy by calling the defendant to the stand and explaining to the defendant that before the judge could accept the plea, the defendant needed to answer certain questions to enable the judge to ascertain whether the plea was voluntary and intelligent and whether the defendant understood the consequences of the plea. The judge instructed the defendant that if he did not understand any of the questions, he should ask for clarification or to speak with his attorney. The defendant acknowledged his understanding of these instructions.

The plea colloquy then proceeded without event, until the judge queried the defendant regarding his understanding of his right to receive a fair trial. It is that juncture which serves as the focus of the instant appeal, and to which we shall return later. For now, we note that when first queried, the defendant indicated that he felt that he could not receive a fair trial. After inquiring as to the basis for the defendant's response, the judge initially refused to accept the, defendant's plea and expressed his intention to bring in the jury and to start the trial. Suffice it to say that ultimately the colloquy resumed, and the defendant changed his answer.

As the colloquy proceeded, the judge then asked the Commonwealth to provide a recitation of the facts as they would be presented at trial. That recitation demonstrated that there was a strong factual basis to support the defendant's convictions for the commission of the charged crimes.²

Towards the end of the colloquy, by way of review, the judge asked the defendant whether he was confused by any of the questions. The defendant replied, "No." He further acknowledged that he was pleading guilty "voluntarily, knowingly, and intelligently" and that he was pleading guilty "[b]ecause I'm guilty and I choose to do so." The defendant and defense counsel then acknowledged that the defendant had reviewed, signed, and understood the written waiver of his rights.

The judge then concluded:

"I accept the change of plea. I find there is a factual basis for the guilty plea; that the defendant is not presently under the influence of drugs or alcohol, and is not presently suffering from any mental illness or condition that affects, in any way this plea.

"I further find the defendant understands the rights that he is waiving and that he is knowingly, willingly, voluntarily and intelligently waiving those rights.

"1 also find the defendant understand[s] the charges to which he's pleading guilty and the consequences of pleading guilty and that the plea was offered knowingly, willingly, voluntarily, and intelligently."

The plea colloquy was thereby concluded.³

On May 14, 2004, the defendant, now represented by new counsel, filed a motion to withdraw his guilty plea pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), asserting that the plea was not intelligently or voluntarily made and that certain of the judge's statements had a coercive effect on the defendant's decision to plead guilty.⁴ In an affidavit accompanying the rule 30(b) motion, the defendant averred that he had previously filed a motion to dismiss his trial counsel and that certain of counsel's efforts were essentially ineffective.⁵ The defendant further averred that when he pleaded guilty, he "did not believe that [he] could receive a fair trial." The motion was not accompanied by an affidavit from plea counsel.

After a February 6, 2006, hearing, the judge, who was also the plea judge, denied the motion. In a subsequent memorandum of decision and order, dated March 13, 2006, the judge explained that he had denied the defendant's pro se motion for a continuance as frivolous because it was "an attempt to delay the trial and have it assigned to a different judge"; he also characterized the transcript of the suppression hearing requested by the defendant as pertaining to an unrelated matter. The judge further explained that when the defendant initially expressed concerns about receiving a fair trial, the judge indicated that he would not accept the plea, but that after subsequently observing the defendant speak with counsel, he permitted the plea colloquy to continue. The judge then noted that he accepted the plea because the defendant, after indicating that he wished to proceed again, answered all the questions voluntarily and intelligently; the evidence of guilt was overwhelming; and the defendant's extensive experience in the criminal justice system belied any concern of coercion. Lastly, the judge noted that the rule 30(b) motion was filed almost three years after the guilty plea,⁶ and that no affidavit from counsel had been filed with the motion.

Discussion. The thrust of the defendant's appeal is that the judge did not conduct a "real probe" of the defendant's mind during the plea colloquy on the issue of his right to a fair trial, and thus the record did not establish that he was entering his plea voluntarily. Hence, he claims that the judge abused his discretion in denying the defendant's motion for a new trial and in refusing to allow him to withdraw his guilty plea.

"A postsentence motion to withdraw a plea is treated as a motion for a new trial." Commonwealth v. Hiskin, 68 Mass.App.Ct. 633, 637, 863 N.E.2d 978 (2007) (Hiskin), quoting from Commonwealth v. Conaghan, 433 Mass. 105, 106, 740 N.E.2d 956 (2000). "Although the disposition of such a motion is within the discretion of the judge, a rigorous standard must be applied and a judge may only allow such a motion `if it appears that justice may not have been done.'" Commonwealth v. Berrios, 447 Mass. 701, 708, 856 N.E.2d. 857 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2103, 167 L.Ed.2d 819 (2007), quoting from Mass.R.Crim.P. 30(b).

In reviewing the disposition of a motion for a new trial, we must "determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Milley, 67 Mass.App.Ct. 685, 687, 856 N.E.2d 183 (2006), quoting from Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). The denial of such a motion "will not...