Com. v. Wiswall, 95-P-1165

• Decision Date: 22 October 1997
• Docket Number: No. 95-P-1165,95-P-1165
• Citation: 43 Mass.App.Ct. 722,686 N.E.2d 477
• Parties: COMMONWEALTH, v. Patrick WISWALL.
• Court: Appeals Court of Massachusetts

Page 477

686 N.E.2d 477

43 Mass.App.Ct. 722

COMMONWEALTH, v. Patrick WISWALL.

No. 95-P-1165.

Appeals Court of Massachusetts,

Suffolk.

Argued April 8, 1997.

Decided Oct. 22, 1997.

Patrick Wiswall, pro se.

Eric Neyman, Assistant District Attorney, for the Commonwealth.

Before ARMSTRONG, BROWN and JACOBS, JJ.

ARMSTRONG, Justice.

Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), established that a plea of guilty could not be regarded as having been made intelligently and voluntarily unless the defendant received adequate notice of each of the critical elements of the offense. The case does not require, however, that, in every instance, the judge explicate all the elements of the crime (426 U.S. at 647 n. 18, 96 S.Ct. at 2258 n. 18). Thus, a plea can be shown to be voluntary if the record shows: "(1) an explanation by the judge of the elements of the crime; or (2) a representation that counsel has explained to the defendant the elements he admits by his plea; or (3) defendant's statements admitting facts constituting the unexplained elements." Commonwealth v. Colantoni, 396 Mass. 672, 679, 488 N.E.2d 394 (1986), paraphrasing Commonwealth v. McGuirk, 376 Mass. 338, 343-344, 380 N.E.2d 662 (1978), cert. denied, 439 U.S. 1120, 99 S.Ct. 1030, 59 L.Ed.2d 80 (1979).

In this pro se appeal from the lower court's denial, without an evidentiary hearing, of his motion to withdraw his guilty pleas, the defendant argues that his plea of guilty to assault with intent to kill was involuntary because he was not informed that an actual intent to kill was an element of the offense. He denies that he had such an intent. The elements were not read at the colloquy, nor was there a representation that the defendant's counsel explained them. The record does show that the defendant--who was charged with armed assault with intent to murder and agreed to plead guilty to assault with intent to kill as part of an agreed sentence recommendation that the judge honored--acknowledged that, during an extended police chase, he was driving a stolen car, saw Officer Collier in the roadway ahead of him, and "changed lanes and tried to run Collier over." Collier escaped because "he was able to jump into the median strip."

The admitted facts did not show that the defendant had an intent to kill as matter of law. Compare Henderson v. Morgan, supra at 645-646, 96 S.Ct. at 2257-2258. Nevertheless the defendant, both in discussions with his counsel as part of plea bargaining, and again, repeatedly, at the change of plea hearing, was informed that he was pleading guilty to "assault with intent to kill." As to the element of intent to kill, the charge was, in our view, self-explanatory. By agreeing to plead guilty to assault "with intent to kill," the defendant acknowledged that his intent when he "tried to run Collier over" was to kill him. The words "with intent to kill," left unadorned, are not vague or ambiguous. ¹

The conclusion we reach here is not inconsistent with our decision in Commonwealth v. Cowie, 28 Mass.App.Ct. 742, 556 N.E.2d 103 (1990). There the question was the adequacy of jury instructions on a charge of assault with intent to murder, delivered prior to the decision in Commonwealth v. Henson, 394 Mass. 584, 590, 476 N.E.2d 947 (1985). The instructions in Cowie defined murder and malice, and explained how, if the jury were to find that the defendant had used excessive force in self-defense, they could return, as a lesser included offense, a verdict of assault with intent to kill or to commit manslaughter. 28 Mass.App.Ct. at 743-744, 556 N.E.2d 103. See Commonwealth v. Ennis, 20 Mass.App.Ct. 263, 265-268, 479 N.E.2d 733 (1985), S.C., 398 Mass. 170, 497 N.E.2d 950 (1986). The jury found the defendant guilty of assault with intent to kill. The difficulty with the charge was that it permitted the jury...