US v. Paleo, Crim. No. 89-191-T.

• Decision Date: 19 June 1990
• Docket Number: Crim. No. 89-191-T.
• Parties: UNITED STATES of America, v. Robert PALEO.
• Court: U.S. District Court — District of Massachusetts

738 F. Supp. 611

UNITED STATES of America, v. Robert PALEO.

Crim. No. 89-191-T.

United States District Court, D. Massachusetts.

June 19, 1990.

Carole S. Schwartz, George Vien, U.S. Attys., for U.S.

Mark Miliotis, Malden, Mass., for Paleo.

MEMORANDUM

TAURO, District Judge.

On March 5, 1990, defendant, Robert Paleo, pleaded guilty to the charge of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The government had previously notified defendant that it would seek an enhanced sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). For the following reasons, this court concludes that such an enhancement is unwarranted.

I.

The primary basis for the government's request for an enhanced sentence is the fact that defendant was previously convicted of qualifying felonies in state court on three separate occasions.¹ Specifically, defendant: 1) pleaded guilty to two complaints of breaking and entering on June 18, 1980; 2) was found guilty after trial of breaking and entering during the night time on July 1, 1980; and 3) pleaded guilty to one count of armed robbery and one count of assault and battery by means of a dangerous weapon on January 27, 1981.

At the outset, it appears that at least some of these convictions were constitutionally infirm. In particular, it is not clear that, with respect to the June 18, 1980 guilty plea, defendant pleaded guilty intelligently and voluntarily. According to his affidavit, defendant, who was seventeen years old at the time of the plea, did not receive a colloquy with the presiding judge and, therefore, was unaware of the elements of the crime to which he was pleading guilty. Because the government has offered no evidence that a proper colloquy was conducted, the June 18, 1980 plea cannot serve as the basis for enhancement here. See Domegan v. United States, 703 F.Supp. 166, 169 (D.Mass.1989) (guilty pleas after inadequate colloquy with trial judge are constitutionally inadequate and, therefore, cannot serve as the basis for enhancement under ACCA).

Moreover, it appears that, with respect to the July 1, 1980 conviction, defendant was unrepresented by counsel at a critical point in his prosecution. After having been found guilty, defendant was sentenced on July 14, 1980, and that sentence was conditioned upon his undergoing treatment for substance abuse. Defendant was represented by counsel at that time. Two days later, however, after spending one day at a treatment facility, defendant reported back to court voluntarily, but without counsel. On that date, defendant was resentenced to one year of imprisonment with one year of probation. Most significantly, because defendant was unrepresented by counsel, he was not told of his statutory right to appeal his conviction to a jury session of the Boston Municipal Court.² This right is critically important, as it essentially affords a defendant an automatic right to a new trial. See Commonwealth v. Day, 24 Mass.App.Ct. 447, 509 N.E.2d 1217, 1219 (1987) (right of appeal "encompasses both the finding of guilty in the primary court and the sentence, and also attaches in cases in which a defendant has admitted to sufficient facts to warrant findings of guilty."). Accordingly, because defendant was denied his Sixth Amendment right to counsel, the July 1, 1980 conviction cannot serve as the basis for an enhanced sentence here. See Baldasar v. Illinois, 446 U.S. 222, 225, 100 S.Ct. 1585, 1586, 64 L.Ed.2d 169 (1980) (right to counsel applies in all criminal prosecutions).³

Finally, the breaking and entering convictions at issue here do not qualify as those crimes which can serve as a basis for an enhanced sentence. Recently, the First Circuit in United States v. Patterson, 882 F.2d 595 (1st Cir.1989) held that, although the legislative history of ACCA is unclear, convictions for breaking and entering under Massachusetts law can serve as predicate offenses for purposes of enhancement under ACCA. Id. at 604. In support of its conclusion that breaking and entering was a "violent felony" for purposes of ACCA, the court noted:

"While a burglary may start out as a nonviolent crime, the burglar may resort to violence if someone is on the premises or appears there while the burglary is in progress. As the Eight Circuit has noted, `Congress could quite reasonably conclude that no matter what the felon's intent upon breaking in, the property owner may return, a neighbor may investigate, or a law enforcement official may respond. All of these scenarios present a grave threat of harm to persons.' .... The conduct proscribed in the Massachusetts statutes poses the potential for a sudden eruption of violence.... That no person was in fact put in fear does not alter the basic premise of Congress that any felonious breaking and entering presents `a serious potential risk of injury to another.'"

Id. (citations omitted).

Here, defendant was convicted under the very breaking and entering statutes with which the Patterson court was concerned.⁴ But, the serious risk of injury resulting from an unlawful entering with which the Patterson court was concerned is not present in this case. Most significantly, the facts surrounding the charges to which defendant pleaded guilty on June 18, 1990 suggest that no unlawful entering ever occurred. And, as the Patterson court noted, "the crucial factor is an unauthorized entry of the premises of another." Patterson at 604.

According to the record, one of the charged offenses involved defendant waiting in an automobile while another person broke into a furniture store, and the other offense involved defend...