Commonwealth v. CorreaCommonwealth v. Correa
- Reporters:
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- Before:
- Lenk
On Oсtober 28, 1992, the defendant pleaded guilty in the District Court to eleven charges contained in five complaints issued against him.1 After he was indicted in January, 1996, in the United States District Court for the crime of reentry after
The transcript of the plea colloquy at issue reveals the following. 2 The judge asked the defendant if he understood that he was waiving his right to a jury trial and his right to cross-examine the Commonwealth’s witnesses. He asked whether the defendаnt understood that conviction of the offenses could result in deportation to his country of origin, withholding of citizenship were he to apply for it, or the refusal to readmit him to this country should he leave it. Receiving affirmative replies to the foregoing, the judge inquired of the defendant whether he had discussed the plea and its consequences with counsel, was satisfied with the advice given him, and believed that his attorney had acted in his best interests. The defendant again responded in the affirmative. Based on this information, the judge determined the defendant’s plea to be voluntary and intelligent. The judge then asked counsel if they would waive the reading of the facts into the record, to which they assented, agreeing to “plead to the faces of the complaints as they exist and appear before the court.” The judge thereupon accepted the defendant’s plea, found him guilty of the criminal offenses сharged, and imposed sentence.3
The defendant now complains that his pleas were constitutionally invalid insofar as he did not admit or acknowledge the factual bases of the charges, was not informed by the judge of the nature, elements, or penal consequences of the charges, was
A postconviction motion to withdraw a plea is treated as a motion for a new trial. Commonwealth v. Huot, 380 Mass. 403, 406 (1980). Accordingly, a judge may grant a defendant’s motion to withdraw a guilty plea if it appears that justiсe may not have been done.
Where a defendant wishing to withdraw a guilty plеa challenges the voluntary or intelligent nature of his plea, it is ordinarily the Commonwealth’s burden to show by means of a contemporaneous or reconstructed record of the plea that it was entered understandingly and voluntarily.4 Commonwealth v. Quinones, 414 Mass. 423, 431-432 (1993); Commonwealth v. Duest, 30 Mass. App. Ct. 623, 625 (1991). See
The judge must determine by means of an adequate colloquy that the plea tendered is both intelligently and voluntarily made. Commonwealth v. Duest, 30 Mass. App. Ct. at 631. A plea is intelligently made when the defendant has knowledge of the elements of the charges against him. See
The concept of voluntariness, in turn, requires that the defendant tender the plea free “from coercion, duress, or improper inducements.” Commonwealth v. Duest, 30 Mass. App. Ct. at 631. To determine the voluntariness of the
Although in order to accept a defendant’s guilty plea the judge must determine that the plea has been tendered both intelligently and voluntarily, certain omissions from the colloquy requirements have nonetheless been tolerated when a defendant collaterally attacks his plea. See Commonwealth v. Dozier, 24 Mass. App. Ct. 961 (1987) (although colloquy omits a warning that by offering pleas of guilty a defendant waives his privilege against self-incrimination, that omission is not necessarily fatal to an intelligent plea). In Federal court, a defendant seeking to set aside a guilty plea in a collateral attack must at the very least show that a proper colloquy would have made a difference in his decision to plead guilty. Cepulonis v. Ponte, 699 F.2d 573, 577-578 (1st Cir. 1983). Our appellate decisions, however, have to date adopted this materiality requirement only where the defendant’s collateral attack is based upon omissions in the colloquy relating to the defendant’s waiver of his intra-trial rights, e.g., privilege against self-incrimination, right to confront witnesses. See Commonwealth v. Nolan, 19 Mass. App. Ct. 491, 500 (1985) (where the deficiencies in the colloquy relate to the defendant’s waiver of his intra-trial rights, the defendant is required to show with some plausibility that it would have made a difference to him in deciding аbout a plea if he had been told about these rights). Thus, even in a situation where the record of the plea colloquy shows that the trial judge, contrary to
The defendant does allege, however, that the judge failed to ascertain that he had knowledge of the elements of the charges against him; the record bears this out. Nothing more need be shown to establish the inadequacy of the colloquy for constitutional purposes. Henderson v. Morgan, 426 U.S. at 645-646. Cf. Commonwealth v. McGuirk, 376 Mass. 338, 344 (1978), cert, denied, 439 U.S. 1120 (1979) (if defendant was not informed that malice aforethought is an element of murder in the second degree, it would have been error to accept his guilty plea and to deny his motion for new trial); Commonwealth v. Begin, 394 Mass. 192, 196-197 (1985) (defendant’s pleа is not valid if he does not receive real notice of the true nature of the charge to which he pleaded guilty).
We conclude that the plea colloquy at issue was fatally deficient.8 The defendant did not explicitly admit to or acknowledge any of the facts underlying the charges, and the
“[A]s a matter of constitutional due process, a guilty plea should not be accepted, and if accepted must be later set aside, unless the recоrd shows affirmatively that the defendant entered the plea freely and understanding^.” Commonwealth v. Fernandes, 390 Mass, at 716, quoting from Commonwealth v. Foster, 368 Mass, at 102. Where, as here, the defendant lacks real notice of the true nature of the charge against him, the plea colloquy is infected with prejudicial constitutional error. See Mack v. United States, 635 F.2d 20, 24-26 (1st Cir. 1980) (prejudice inhered in the violation of
So ordered.
Notes
Two complaints each charged the defendant with contributing to the delinquency of a child,
The record on appeal contains what appears to be an unofficial and incomplete transcript of the October 28, 1992, hearing.
The defendant was sentenced on the complaint charging breaking and entering and larceny to nine months in the house of correction to be served concurrently with a sentence he was then serving on unrelated conviсtions. The remaining convictions were placed on file. Because the record does not indicate that the defendant consented to the filing of the convictions, we shall consider them. See Commonwealth v. Paniaqua, 413 Mass. 796, 797 n.l (1992).
The defendant did not complain about his plea colloquy or seek to withdraw his pleas until the collateral consequences of his guilty pleas became evident following his indictment in the United States District Court for the crime of reentry after deportation,
In additiоn, defense counsel cannot waive the defendant’s rights on his behalf. The purpose of the colloquy here, as in the case of a colloquy concerning the waiver of a jury trial, is to ensure that defense counsel has done his duty in discussing the plea choice with the defendant and that the defendant has participated in and comprehends the decision. “If the actions of defense counsel were to be relied on to protect the defendant there would be no need for a colloquy at all.” Commonwealth v. Pavao, 423 Mass. 798, 804 (1996).
However, where involuntariness is alleged and it is shown that the judge did not inquire specifically as to whether threats were made or inducements offered that might have rendered involuntary the defendаnt’s decision to plead guilty, the plea colloquy will not satisfy constitutional requirements even though the defendant expressly waives his intra-trial rights and the judge adequately inquires about the factual basis of the charge. Commonwealth v. Fernandes, 390 Mass, at 718-719.
We note that carefully drafted and fully inclusive model questionnaires have long been availаble to assist a judge in properly conducting a plea colloquy. See Smith, Criminal Practice and Procedure § 1238 (2d ed. 1983). See also 3 ABA Standards for Criminal Justice § 14, at 92-94 (2d ed. 1986). “When a careful inquiry is not made before acceptance of the plea, a defendant with a legitimate reason to challеnge the . . . plea is left to make his attack in postconviction proceedings, perhaps many months or years after the plea was tendered, when his motives may be highly suspect, and the credibility of his evidence, even if available, is likely to be seriously questioned.” Commonwealth v. Fernandes, 390 Mass, at 721. See Commonwealth v. Quinones, 414 Mass, at 435 (where defendant did nothing to pursue his appellate rights for five years, judge was fully warranted in concluding that the defendant’s claim was disingenuous at best). By referring to pattern questionnaires rather than risking omissions or other defects through improvisations, justice is more likely to be done. See Commonwealth v. Nolan, 19 Mass. App. Ct. at 502.
In addition, the judge failed to determine that the defendant understood that he was waiving his right not only to a trial by jury but also to a non-jury trial and failed to determine that the defendant understood that he was waiving his privilege not to incriminate himself. As noted earlier, these deficiencies do not necessarily require a finding that the plea was not voluntary or intelligent. See Commonwealth v. Nolan, 19 Mass. App. Ct. at 500; Commonwealth v. Dozier, 24 Mass. App. Ct. at 961. They may, however, be considered with the other deficiencies in reaching the determination that the plea was not intelligently made.