Commonwealth v. Colon

• Decision Date: 06 March 2003
• Citation: 439 Mass. 519,789 NE 2d 566
• Parties: COMMONWEALTH v. GRABIEL COLON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

439 Mass. 519

789 NE 2d 566

COMMONWEALTH v. GRABIEL COLON.¹

Supreme Judicial Court of Massachusetts, Hampden.

March 6, 2003.

June 6, 2003.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Benjamin H. Keehn, Committee for Public Counsel Services, for the defendant.

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

IRELAND, J.

After he was indicted in 1999, on two firearm charges that carried enhanced sentences for repeat offenders, see G. L. c. 269, § 10G (c), the defendant moved to withdraw guilty pleas entered in the Holyoke Division of the District Court Department in 1994 and 1996. A judge other than the plea judge ruled on the defendant's motions. She allowed the defendant's motion on the 1996 plea, but denied the motion on the 1994 plea. The defendant appealed and the Appeals Court affirmed. Commonwealth v. Colon, 55 Mass. App. Ct. 903 (2002). We granted the defendant's application for further appellate review. Because we conclude that the plea procedure was defective, we reverse the defendant's conviction and remand this case to the District Court for further proceedings consistent with this opinion.

I. Background.

Represented by counsel, the defendant pleaded guilty in the Holyoke District Court in 1994, and 1996, to various crimes and was sentenced on his pleas.² In 1999, the defendant was indicted in Superior Court on firearm charges. G. L. c. 269, §§ 10 (a) and (h), 10G (c). Two of the crimes for which the defendant was indicted in 1999 have a mandatory minimum sentence of fifteen years in the State prison for repeat offenders. G. L. c. 269, § 10G (c). After the defendant was indicted, he sought to vacate the convictions entered pursuant to his guilty pleas in 1994 and 1996, and moved for new trials in those cases. His motions allege that the plea judge, who was the same in each case, gave a constitutionally inadequate plea colloquy.

The defendant submitted the tape recording of the 1996 plea hearing, which revealed various deficiencies in that colloquy, discussed infra. The tape recording of the 1994 plea hearing was no longer available,³ and the defendant's challenge to its adequacy was premised on the inadequacies of the plea judge's customary plea practice. In support of the motion, defense counsel submitted an affidavit that: (1) the same judge accepted the defendant's guilty pleas in 1994 and 1996; (2) in the defendant's 1996 plea proceeding, the judge failed to inquire as to the defendant's understanding of the charges against him, the maximum penalties, elements of the charges, or whether the defendant admitted that the facts were true, and did not advise the defendant that he was waiving his rights to a jury trial, to confront his accusers, or his privilege against self-incrimination; (3) attorneys who regularly practiced before the plea judge indicated that they "never heard [him give] a full colloquy"; and (4) one such attorney recited the judge's regular inadequate colloquy, and it was consistent with the 1996 recorded inadequate colloquy.

In response to the defendant's motions, the Commonwealth submitted two affidavits. An assistant clerk-magistrate at the Holyoke District Court averred that he had "participated in approximately 10,000 plea colloquies performed by" the plea judge and that in his "experienced opinion," the judge's "regular practice is to give a full and complete plea colloquy." Additionally, an attorney who "handled numerous criminal matters" in the court, averred that he "cannot recall any [matter] in which [the plea judge] did not conduct a thorough colloquy to determine if my client's plea or submission was knowing, willing and intelligent."

The defendant then filed a motion to recuse the plea judge from the motion to withdraw his 1994 guilty plea. In support of this motion, defense counsel submitted an affidavit, which in addition to reiterating information contained in her first affidavit, stated that she had obtained six randomly selected recordings of guilty pleas taken by the plea judge during 1996 and 1997 (the earliest years for which tapes were available); she attended three plea colloquies given by the plea judge in April, 2000; and none of the plea colloquies on the six randomly selected tapes, the defendant's 1996 tape-recorded plea, or the three hearings she heard, was constitutionally adequate.

The plea judge granted the defendant's motion to recuse, and both the 1994 and the 1996 cases were transferred to a different judge in the Holyoke District Court.⁴ At the hearing on the defendant's motions, defense counsel represented that the defendant did not have a specific recollection as to what happened at the 1994 plea proceeding. The defendant had, however, signed a form indicating that he was waiving his right to be tried by a jury.⁵ Defense counsel submitted the tape recording of the 1996 plea and the six tape recordings of randomly selected plea colloquies. She explained that it was an assistant clerk-magistrate who had randomly selected those tapes. In addition, defense counsel testified as to her observations during three plea colloquies in April, 2000, before the plea judge. Two attorneys who regularly practiced before the plea judge, testified to his routine practice for plea colloquies from 1994 to the present. All three attorneys testified that the judge adheres to substantially the same pattern: (1) he informs the defendant that the defendant's attorney has negotiated a plea with the prosecutor, and that the defendant has the right to withdraw the plea and have a trial by a judge or jury if the judge exceeds the recommended sentence; (2) he informs the defendant that he could be deported as a result of the conviction if he is not a United States citizen; (3) he asks the prosecution to read the facts; and (4) he asks if defense counsel has anything to add or wishes to be heard. There is virtually no dialogue between the judge and the defendant. This pattern is consistent with transcripts from the seven tape-recorded colloquies.⁶

The hearing was continued to the following week, when the Commonwealth called Thomas Kokonowski, a prosecutor during 1993 and 1994, who participated in many pleas before the judge, including the defendant's 1994 plea. Although Kokonowski had no specific memory of the defendant's plea, he testified to the specific questions that he recalled the plea judge routinely asked during plea colloquies.⁷ In addition, the Commonwealth submitted an affidavit from the plea judge regarding his regular plea colloquy practice. The affidavit listed approximately fourteen questions pertaining to the defendant's age, education, understanding of the proceedings, understanding of the rights being waived, satisfaction with counsel, and absence of force.⁸ The Commonwealth also referenced the previously submitted affidavits.

The motion judge granted the motion for a new trial with respect to the 1996 plea, but denied the motion with respect to the 1994 plea. The motion judge's findings and order for the 1994 plea acknowledged that the seven tape-recorded plea colloquies were deficient. She concluded, however, that "the defendant did not meet his initial burden to establish that the presumptively proper guilty plea proceedings were constitutionally defective."

II. Discussion.

"A motion for new trial is the appropriate device for attacking the validity of a guilty plea." Commonwealth v. Huot, 380 Mass. 403, 406 (1980), citing Commonwealth v. Penrose, 363 Mass. 677, 681 (1973). 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. Russin, 420 Mass. 309, 318 (1995), citing Commonwealth v. Sullivan, 385 Mass. 497, 503 (1982). Because we conclude that the judgment entered by the motion judge is both infected with prejudicial constitutional error, and is manifestly unjust, we reverse the denial of the motion for a new trial.

"[T]he standards that should govern a judge's consideration of a defendant's motion to withdraw a guilty plea under Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979), when the motion is filed in a sentencing enhancement context and no record of the plea exists because the means of creating that record have been destroyed pursuant to court rule" are set forth in Commonwealth v. Lopez, 426 Mass. 657, 658 (1998). In such circumstances, "if [a] challenge is to advance at all, [it] must be accompanied by sufficient credible and reliable evidence to rebut a presumption that the prior conviction was valid. If a defendant meets this burden, then an evidentiary hearing may be warranted at which the burden" shifts to the Commonwealth. Id. at 665.

In concluding that the defendant did not meet his initial burden, the motion judge did not specifically decide whether the defendant presented "sufficient credible and reliable evidence to rebut [the] presumption" of the plea's validity, id., other than to conclude that the plea judge's affidavit "far outweigh[ed]" the defendant's evidence. In addition, the motion judge evidently misunderstood the purpose of the tape-recorded pleas, which were submitted to reconstruct the record by establishing the plea judge's customary plea practice.⁹ See Commonwealth v. Quinones, 414 Mass. 423, 432 (1993) ("no impropriety ... in relying on a judge's customary practice in taking guilty pleas to reconstruct the record"). The record does not support the motion judge's conclusion that the defendant did not meet his initial burden.

We summarize the considerable evidence the defendant offered to rebut the presumption of regularity. First, he presented recordings from six randomly selected colloquies given during 1996 and 1997. It is significant that the tape-recorded pleas were randomly chosen by an assistant clerk-magistrate, and defense counsel had no prior knowledge of the...