Commonwealth v. Marino
| Decision Date | 24 February 1926 |
| Parties | COMMONWEALTH v. MARINO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Criminal Court, Suffolk County; Elias B. Bishop, Judge.
Pauline Marino was convicted in the district court of keeping and exposing intoxicating liquors for sale. On appeal to the superior court her motion for leave to withdraw plea and petition to be allowed to plead anew were denied, and she excepts. Exceptions overruled.
Where record recites that defendant personally pleaded to charge, and there was nothing therein to show that plea was entered by her attorney, facts stated in her motion to withdraw plea, and petition to be allowed to plead anew, contradict the record, which is conclusive and must stand.
Contention that defendant's motion to withdraw plea, and petition to be allowed to plead anew, were denied without a hearing, held not tenable, where record expressly recites that ‘after a hearing’ they were denied.
Plea of nolo contendere is an admission of guilt of the offense charged, and is equivalent to a plea of guilty.
Where defendant, to charge of keeping and exposing intoxicating liquors for sale, entered plea of nolo contendere which was accepted, whether plea could be withdrawn and a different plea entered rested in court's discretion.
If a plea is entered by mistake or by inadvertence, or of nolo contendere by an attorney without authority, the court in its discretion may permit its withdrawal, and allow defendant to plead anew.
Where, after entry of plea of nolo contendere, defendant filed motion for leave to withdraw plea and petition to be allowed to plead anew, and accompanied motion and petition with affidavit, without other evidence, the court was not required to believe the affidavits.
Where plea of nolo contendere was admission of allegations of the complaint, and, while appeal to superior court vacated judgment, it did not entitle defendant to trial therein, only matter before the court being imposition of sentence.
Eugene J. Harrigan, Asst. Dist. Atty., of Boston, for the commonwealth.
Joseph P. Walsh, of Boston, for defendant.
[1] The defendant was arrested on a complaint presented to the district court of Chelsea, charging her with keeping and exposing intoxicating liquor for sale. She entered a plea of nolo contendere and was sentenced upon her plea; and thereafter, she entered an appeal in the superior court. In that court she filed a motion for leave to withdraw her plea and to plead again to the charge. She also filed a petition praying that she be arraigned and allowed to plead anew. An affidavit, executed by her and to which she made oath that the recitals therein were true, accompanied the motion and petition. The motion and petition were denied, and the defendant excepted.
She contended that the plea of nolo contendere was entered by her attorney without her knowledge or consent. The record of the district court recites that upon the reading of this complaint in open court, the defendant was asked by the court wheter she was guilty or not guilty of the offense charged, and that she pleaded nolo contendere which plea was accepted by the court; and that ‘it appears to said court that the said defendant is guilty of the offense aforesaid.’ On the record she personally pleaded. There is nothing in the record to show that the plea was entered by her attorney. The facts stated in the motion and petition contradict the record, which is conclusive...
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