Commonwealth v. Najjar, 18-P-638.

• Decision Date: 21 November 2019
• Docket Number: No. 18-P-638.,18-P-638.
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. William NAJJAR.

96 Mass.App.Ct. 569

136 N.E.3d 1246

COMMONWEALTH

v.William NAJJAR.

No. 18-P-638.

Appeals Court of Massachusetts, Middlesex..

Argued March 6, 2019.

Decided November 21, 2019.

Amy Codagnone, Boston, for the defendant.

Konstantin Tretyakov, Assistant District Attorney, for the Commonwealth.

Present: Rubin, Kinder, & Singh, JJ.

RUBIN, J.

On September 23, 2013, the defendant pleaded guilty to trafficking in cocaine, see G. L. c. 94C, § 32E (b ), four counts of distribution of cocaine, see G. L. c. 94C, § 32A (c ), conspiracy to distribute cocaine, see G. L. c. 94C, § 40, possession of a firearm in the commission of a felony, see G. L. c. 265, § 18B, and possession of ammunition without a firearm identification card, see G. L. c. 269, § 10 (h ) (1). The plea judge accepted the defendant's guilty pleas and sentenced him on the trafficking charge to imprisonment of not fewer than eight years, the minimum mandatory sentence on that charge, and not more than nine years. The plea judge also sentenced the defendant to not fewer than eight years but not more than nine years on the distribution and possession of a firearm in the commission of a felony charges, to be served concurrently with the sentence on the trafficking charge. On the conspiracy and possession of ammunition without a firearm identification card charges, the plea judge sentenced the defendant to concurrent two-year probationary terms from and after the committed sentences.

Approximately four years after sentencing, the defendant filed a motion to withdraw his guilty pleas claiming that (1) they were made without the assistance of counsel and without a valid waiver of counsel, (2) they were not knowing and voluntary, and (3) his counsel was ineffective for failing to pursue a particular theory in support of a motion to suppress evidence. A different judge (motion judge) denied the motion without an evidentiary hearing, but revised and revoked the prison sentence to not fewer than eight years but no more than eight years and one day.¹ The defendant presses the same arguments on appeal. We vacate the order denying the defendant's motion and remand for further proceedings.

1. Validity of the pleas. We turn first to the defendant's claim that his pleas were not knowing and voluntary. To satisfy the basic requirements of due process, a guilty plea must be knowing -- courts sometimes use the word "intelligent" -- and voluntary. Commonwealth v. Furr, 454 Mass. 101, 106, 907 N.E.2d 664 (2009). See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 637 n.5, 863 N.E.2d 978 (2007) ("Use of the term 'knowing' is but another way of describing the longstanding requirement that a guilty plea be made intelligently ..."). The judge must ensure that the defendant "has a full understanding of what the plea connotes and of its consequence." Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). He must understand the "direct consequences" of his plea (citation omitted). Commonwealth v. Roberts, 472 Mass. 355, 362, 34 N.E.3d 716 (2015). These consequences include the mandatory minimum sentence to which the defendant will be subject. See Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 579, 755 N.E.2d 753 (2001) (even when defendant pleads guilty and will be sentenced by agreement to straight probation, maximum and mandatory minimum sentences that could be imposed following violation of probation conditions are not "collateral to the crime to which the plea [is] given. Rather, [they are] a direct consequence of, and in recognition of, the crime and the plea thereto ..."). See also Commonwealth v. Murphy, 73 Mass. App. Ct. 57, 66-67, 895 N.E.2d 764 (2008) (defective colloquy "risked not adequately informing the defendant that failing to successfully complete his period of probation could result in the imposition of a period of incarceration for at least a minimum of twenty years"). This means that a defendant cannot tender a constitutionally adequate guilty plea without knowing that mandatory minimum sentence. Indeed, this proposition has been "clearly established" for at least a decade. Jamison v. Klem, 544 F.3d 266, 278, 279 (3d Cir. 2008) ("it can not seriously be argued that serving five years in prison pursuant to a mandatory minimum sentence is a 'collateral' consequence of a guilty plea and not a direct result of it"; it is "clearly established" that a guilty plea entered without knowledge of the mandatory minimum sentence violates due process). See Boykin, supra at 243-244, 89 S.Ct. 1709. See also Vittitoe v. State, 556 So. 2d 1062, 1064 (Miss. 1990) ("A canvas of state law authority reveals no fewer than two dozen cases holding that guilty pleas made with ignorance of a minimum or mandatory minimum sentence are unenforceable"). The Commonwealth bears the burden to show the plea was knowing and voluntary. Furr, supra at 107, 907 N.E.2d 664.

The trafficking charge carries an eight-year mandatory minimum sentence. G. L. c. 94C, § 32H. In his affidavit, the defendant asserts that during plea negotiations, after he told the prosecutor that he had "no intention of pleading guilty to an 8-year sentence," the prosecutor "declined to amend his terms but advised [the defendant] of recent changes in legislation that would permit [him] to earn good time on the trafficking sentence, with parole eligibility in roughly half of the term."

The motion judge found those assertions "creditable," but denied the defendant, who was acting pro se when he entered his guilty pleas, an evidentiary hearing on the basis that the information given by the prosecutor was not "material." Because we conclude that the knowingness of the defendant's pleas depends on whether the prosecutor misinformed the defendant, we also conclude that there was error in denying the defendant's motion in the absence of an evidentiary hearing or a finding of fact on the question whether the defendant was in fact told that by the prosecutor.

To begin with, as the motion judge found, the defendant's assertion is creditable: there is no reason to disbelieve that the prosecutor so advised the defendant, because at the sentencing hearing a few days after the plea hearing, after the judge sentenced the defendant, in response to the defendant's question about eligibility for parole and good time credits, the prosecutor interjected, "I do believe that because of the change in the statute that there has been a change in the availability of good time for min[imum] man[datory] sentences, so that is more favorable to the defendant than it was before the change in the law." The judge responded, "Right. But that's [not] for us to be involved." This indicated the prosecutor's (and perhaps even the plea judge's) incorrect belief, consistent with the defendant's affidavit, that he would be eligible for parole and good time credits, and that, hence, the defendant was not in fact subject to an eight-year mandatory minimum sentence. The Commonwealth does not dispute what the prosecutor told the defendant, arguing only that "even if the prosecutor's assertions about these matters were incorrect ..., the defendant is not entitled to withdraw his pleas."

If the defendant, then pro se, was told by the prosecutor during plea negotiations that if he (the defendant) pleaded guilty to charges including trafficking in cocaine, G. L. c. 94C, § 32E (b ), he would be subject to a minimum sentence of eight years, but would be eligible for good time credits and parole, such that he might be released after only "roughly half of the term," it could well have formed the basis for the defendant's belief about the actual minimum sentence he faced.² Because the question before us is the voluntariness and subjective knowingness of the defendant's guilty pleas, the Commonwealth cannot prevail simply because the incorrect statement by the prosecutor during plea negotiations may have been inadvertent.

Even assuming the prosecutor made the erroneous statement during plea bargaining, the defendant could perhaps have gained knowledge of the consequences of his pleas at the change of plea hearing. The plea judge, after all, was required under Mass. R. Crim. P. 12 (c) (3) (A) (ii) (c), as appearing in 470 Mass. 1501 (2015),³ to tell the defendant both the maximum and the minimum mandatory sentences that he faced on each of the charges to which he was pleading. The plea judge, however, articulated the maximum sentence but failed to articulate the mandatory minimum sentence. This violated rule 12, but, more significantly for present purposes, and, as relevant to the defendant's argument, if the defendant were given by the prosecutor the erroneous information the defendant describes, the failure of the plea judge at the colloquy to inform the defendant of the mandatory minimum sentence on the charges to which the defendant was pleading guilty, and the absence of any other evidence on the issue, means the Commonwealth cannot on the record before us satisfy its burden to prove that the defendant subjectively knew that, by pleading guilty, he would be subject to a minimum of eight years of imprisonment.

As a matter of due process, unknowing pleas are void. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). They must be vacated regardless of whether the court concludes that, if properly informed about the consequences of his plea, the defendant would have nonetheless pleaded guilty. "As a general proposition of constitutional law, a guilty plea must be vacated or nullified unless the record of the plea proceedings demonstrates that the defendant entered the plea knowingly and voluntarily. [ Boykin, 395 U.S. at 242-243, 89 S.Ct. 1709 ]." Rodriguez, 52 Mass. App. Ct. at 581, 755 N.E.2d 753.

If the prosecutor did misinform the defendant as he asserts, and if he, in fact, subjectively did not understand at the time of the pleas that he was subject to a minimum mandatory sentence, he is entitled to have the trafficking guilty plea...