Commonwealth v. Lewis

• Decision Date: 31 October 2019
• Docket Number: No. 18-P-765,18-P-765
• Parties: COMMONWEALTH v. Vaughn LEWIS.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 354

136 N.E.3d 1226

COMMONWEALTH

v.Vaughn LEWIS.

No. 18-P-765

Appeals Court of Massachusetts, Bristol..

Argued January 7, 2019

Decided October 31, 2019

MarySita Miles, Boston, for the defendant.

Robert P. Kidd, Assistant District Attorney, for the Commonwealth.

Present: Agnes, Sacks, & Ditkoff, JJ.

DITKOFF, J.

The defendant, Vaughn Lewis, pleaded guilty to possession of heroin with the intent to distribute, G. L. c. 94C, § 32(a ), and possession of cocaine with the intent to distribute, G. L. c. 94C, § 32A(c ). A Superior Court judge allowed the defendant's motion to withdraw his guilty plea with respect to the cocaine charge based on the malfeasance of chemist Annie Dookhan,¹ where Dookhan was one of the certifying analysts, but denied the motion with respect to the heroin charge, where the heroin was tested in a different laboratory by an analyst other than Dookhan. The defendant now appeals from the partial denial of his motion. Concluding that the judge acted within his discretion in determining that the guilty pleas were divisible, and that the defendant is not entitled to the conclusive presumption of government misconduct based on the non-Dookhan heroin certificates, we affirm.

1. Background. Based on information provided by a confidential informant that the defendant was operating a drug distribution service out of a first-floor apartment, the New Bedford police began conducting surveillance. After the informant made a controlled purchase of cocaine from the defendant at the apartment, an officer obtained a search warrant.

On the evening of February 18, 2009, officers conducted surveillance in preparation for the execution of the warrant. The officers observed the defendant exit the front door of the apartment building and get into a car parked in front of the building. The operator of the car drove it away, and the officers followed. The officers stopped the car and placed the defendant in custody. Pursuant to the warrant, an officer searched the defendant and recovered $465, one plastic bag of suspected heroin from his coat pocket, and a set of keys.

The officers used the keys found on the defendant to gain access to the first-floor apartment. During a search of the apartment's kitchen, the officers found one plastic bag of suspected heroin in the butter compartment of the refrigerator, multiple baggies containing residue, and a digital scale. In one of the bedrooms, the officers located more baggies, a bottle of inositol that the officers believed to be a cutting agent, a drug ledger, five tablets of Klonopin, and a probation receipt, mail, and utility bills that indicated the defendant was living in the apartment. Outside the apartment, in a closet, the officers found a plastic bag containing eleven individual bags of suspected cocaine and two plastic bags of a suspected cutting agent next to a dog collar and dog food. The defendant owned and cared for dogs at his apartment. In the basement of the building, officers recovered a loaded .22 caliber firearm and a loaded .45 caliber firearm. A total of $2,470 was seized from the defendant as a result of the search.

The bag that contained suspected cocaine and the two bags that contained a suspected cutting agent were sent to the William A. Hinton State Laboratory Institute (Hinton laboratory) for analysis. The Hinton laboratory issued three drug certificates. Each certificate identified the substances -- including the bags of a suspected cutting agent -- as cocaine. Dookhan had signed each certificate as an assistant analyst. The suspected heroin recovered from the defendant's person and from the refrigerator in the apartment was tested and certified as heroin by Michele Manzello, an analyst at a State laboratory in Worcester (Worcester laboratory).²

A grand jury returned indictments charging the defendant with trafficking in twenty-eight grams or more of cocaine, G. L. c. 94C, § 32E(b )(2) ; possession of heroin with the intent to distribute, subsequent offense, G. L. c. 94C, § 32(b ) ; possession of cocaine with the intent to distribute, subsequent offense, G. L. c. 94C, § 32A(d ) ; possession of Klonopin, G. L. c. 94C, § 34 ; and four firearm charges.³ Prior to the plea hearing, the defendant moved to dismiss the firearm charges based on a lack of evidence that the defendant possessed the weapons found in the basement, a common area in the apartment building. A print lifted from one of the firearms excluded the defendant, and none of the items found near the firearms was attributable to the defendant. The defendant's motion to dismiss the firearm indictments was allowed without objection from the Commonwealth. Immediately after, the defendant pleaded guilty to possession of heroin with the intent to distribute and possession of cocaine with the intent to distribute in exchange for the elimination of the subsequent offense portions of those charges and the entry of a nolle prosequi on the possession of Klonopin charge and the trafficking cocaine charge. Consistent with the parties' agreement, the judge imposed concurrent sentences of five years to five years and one day on the two convictions.

On March 1, 2017, the defendant filed a motion to withdraw his guilty plea to the cocaine charge because of Dookhan's misconduct at the Hinton laboratory. At the hearing on the motion on June 23, 2017, the Commonwealth announced that it did not oppose the defendant's motion. At this point, the defendant orally moved to dismiss the cocaine charge and to withdraw his guilty plea to the non-Dookhan heroin charge.⁴ The Commonwealth opposed the withdrawal of the guilty plea on the heroin charge. On October 26, 2017, a Superior Court judge, who also had been the plea judge, allowed the motion to withdraw the guilty plea to the cocaine charge, denied without prejudice the motion to dismiss that charge, and denied the motion to withdraw the guilty plea to the heroin charge. This appeal followed.

2. Standard of review. "A motion ... pursuant to Mass. R. Crim. P. 30(b) is the proper vehicle by which to seek to vacate a guilty plea.... Under Mass. R. Crim. P. 30(b), a judge may grant a motion for a new trial any time it appears that justice may not have been done." Commonwealth v. Williams, 89 Mass. App. Ct. 383, 387, 50 N.E.3d 206 (2016), quoting Commonwealth v. Scott, 467 Mass. 336, 344, 5 N.E.3d 530 (2014). "We review the denial of a motion to withdraw a guilty plea to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Lastowski, 478 Mass. 572, 575, 88 N.E.3d 263 (2018), quoting Commonwealth v. Sylvester, 476 Mass. 1, 5, 62 N.E.3d 502 (2016). "Particular deference is to be paid to the rulings of a motion judge who served as the [plea] judge in the same case." Sylvester, supra at 6, 62 N.E.3d 502, quoting Scott, supra.

3. Divisibility of the plea agreement. The defendant's primary argument is that, because the cocaine charge was the lead charge (a contention the Commonwealth contests), the vacatur of that charge requires the withdrawal of his plea on the heroin charge, even if that charge was untainted by any misconduct. At least one State follows the rule that "a trial court must treat a plea agreement as indivisible when pleas to multiple counts or charges were made at the same time, described in one document, and accepted in a single proceeding." State v. Turley, 149 Wash. 2d 395, 400, 69 P.3d 338 (2003). That, however, has never been the rule in Massachusetts. To the contrary, we have consistently permitted guilty pleas to stand even when other guilty pleas, entered at the same time, were vacated. See, e.g., Commonwealth v. Cano, 87 Mass. App. Ct. 238, 239, 244-248, 28 N.E.3d 491 (2015) (affirming denial of motion to withdraw guilty plea to threats charge but remanding for evidentiary hearing on plea to assault charge); Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 352, 364-365, 922 N.E.2d 166 (2010) (defendant pleaded guilty to twenty-four charges on seven complaints; court reversed denial of motion to withdraw guilty plea as to seventeen charges, affirmed as to two charges, and noted that others were undisturbed); Commonwealth v. DeCologero, 49 Mass. App. Ct. 93, 98, 726 N.E.2d 444 (2000) (affirming denial of motion to withdraw guilty plea to trafficking in cocaine but reversing denial of motion to withdraw guilty plea to conspiracy to traffic in cocaine arising from same incident); Commonwealth v. Pixley, 48 Mass. App. Ct. 917, 917 & n.1, 723 N.E.2d 38 (2000) (guilty plea to drug charge vacated as unintelligent; other pleas not challenged). Cf. Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 390 & n.1, 974 N.E.2d 645 (2012) (requesting clarification on remand whether judge vacated only assault plea).

We have done so even in the face of drug laboratory malfeasance. In fact, in Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 42 n.5, 23 N.E.3d 127 (2015), we found ourselves "at a loss ... to conjure any justification for the grant of a new trial" on resisting arrest and assault and battery charges to which guilty pleas were entered at the same time as pleas to charges tainted by chemist Sonja Farak's misconduct. See Commonwealth v. Ware, 471 Mass. 85, 93, 27 N.E.3d 1204 (2015) ("Farak pleaded guilty to numerous criminal charges that arose from her work as a chemist at [a State laboratory]. Her misconduct has raised significant concerns about the administration of justice in criminal cases where a defendant was convicted of a drug offense and she was the analyst"). Cf. Commonwealth v. Gaston, 86 Mass. App. Ct. 568, 576, 18 N.E.3d 1118 (2014) (conviction on drug charge reversed after trial because of Dookhan's misconduct; denial of motion for new trial on other charges affirmed). Similarly, in Ware, supra at 89-90, 27 N.E.3d 1204, the Supreme Judicial Court faced guilty pleas entered on the same day to two sets of charges, one arising from a 2009 indictment and one from 2010 indictments....