Commonwealth v. Ballard, 15–P–1369.

• Decision Date: 18 August 2016
• Docket Number: No. 15–P–1369.,15–P–1369.
• Citation: 56 N.E.3d 894 (Table),90 Mass.App.Ct. 1102
• Parties: COMMONWEALTH v. Ronald A. BALLARD.
• Court: Appeals Court of Massachusetts

90 Mass.App.Ct. 1102

56 N.E.3d 894 (Table)

COMMONWEALTH

v.Ronald A. BALLARD.

No. 15–P–1369.

Appeals Court of Massachusetts.

August 18, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Ronald A. Ballard, appeals from the denial of his motion to withdraw guilty pleas and for a new trial. We reverse.

Background. On August 1, 2013, a criminal complaint issued from the East Brookfield Division of the District Court Department charging the defendant with intimidation of a witness in violation of G.L.c. 268, § 13B

, threatening to commit a crime (murder) in violation of G.L.c. 275, § 2, and accosting or annoying a person of the opposite sex in violation of G.L.c. 272, § 53.² On January 7, 2014, the defendant pleaded guilty to the charges. During the plea colloquy, the judge informed the defendant of the rights he was giving up and specifically asked defense counsel whether he had “gone over the elements, defenses, and maximum penalties with [his] client.” Counsel responded that he had. When asked for a basis for the charges, the prosecutor stated as follows:

“Your Honor, the facts allege on July 29, 2013, the defendant before you did approach a farm stand in Spencer, Massachusetts. Working at the farm stand was the victim in this case, at the time a 17–year–old girl. After some conversation with the complaining witness in the case, Mr. Ballard did use language that would be offensive to a reasonable person. The Commonwealth would be able to prove that at trial. In addition to that conversation of a sexual nature, Your Honor, he did make threats that if she were to screw with him, he would hang her by her ankles. Additionally, he said that if she were to screw with him, he would screw her over harder. Those would be the facts that the Commonwealth would present at trial.”

The judge asked the defendant whether that was what had happened, and the defendant answered, “Yes, sir.” The judge found “sufficient facts” and, after accepting the defendant's statements that he was pleading guilty willingly, freely, voluntarily, and because he was guilty and for no other reason, the judge accepted the defendant's plea.

One year later, represented by new counsel, the defendant moved to withdraw his guilty pleas and for a new trial on the basis that the colloquy did not provide a sufficient factual basis for the pleas. The plea judge denied the motion in a margin endorsement.

Discussion. 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. Scott, 467 Mass. 336, 344 (2014), and may be granted “if it appears that justice may not have been done.” Mass.R.Crim.P. 30(b). “The motion is addressed to the sound discretion of the judge,” whose disposition will not be reversed “unless it is manifestly unjust, or unless the plea colloquy was infected with prejudicial constitutional error.” Commonwealth v. Correa, 43 Mass.App.Ct. 714, 716 (1997) (citation omitted), and cases cited. The defendant argues that his plea colloquy was infected with prejudicial constitutional error because the Commonwealth failed to present facts sufficient to support a conviction of any of the three charges. While we understand the impulse to further shield the victim and her parent, who were present in the court room, we are constrained to conclude that the proffer was too sparse to support these convictions.

“A plea is intelligently made only when the defendant can admit to facts entered on the record that establish each element of the crime with which he is charged.” Commonwealth v. Sherman, 68 Mass.App.Ct. 797, 810 (2007)

(Trainor, J., dissenting), S.C., 451 Mass. 332 (2008). “Whether the defendant admits to the crime in open court, or the Commonwealth shows the factual basis for the plea, a court may not convict unless there are sufficient facts on the record to establish each element of the offense.” Commonwealth v. Del Verde, 398 Mass. 288, 297 (1986).

To sustain a conviction for intimidation of a witness, “the Commonwealth was required to prove that the defendant wilfully engaged in intimidating conduct, that is, acts or words that would instill fear in a reasonable person, and did so with the intent to impede or influence a potential witness's testimony.” Commonwealth v. Rivera, 76 Mass.App.Ct. 530, 535 (2010)

. However, “[t]he prosecutor made no representation, nor was there any stipulation, as to the intent with which the defendant” made threatening comments to the victim. Commonwealth v. Garcia, 23 Mass.App.Ct. 259, 266 (1986). No criminal proceeding was pending when the defendant spoke with the victim, and his comments, as placed in the record by the Commonwealth, do not imply an “intent to impede, obstruct, or interfere with a criminal investigation.” Commonwealth v. Rivera, supra at 536–537.

While the defendant's statements, that if the victim “were to screw with him, he would hang her by her ankles” and “would screw her over harder,” undoubtedly are threats, the Commonwealth failed to present any evidence of the defendant's “ability to [carry out the threats] in circumstances that would justify apprehension on the part of the [victim].” Commonwealth v. Sholley, 432 Mass. 721, 725 (2000)

, quoting from Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995). Thus, “the pr...