426 Mass. 657 | Mass. | 1998
We transferred this case to this court on our own motion. We consider in this case, and in Commonwealth v. Grant, post 667 (1998), the standards that should govern a judge’s consideration of a defendant’s motion to withdraw a guilty plea under Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979), when the motion is filed in a sentencing enhancement context and no record of the plea exists because the means of creating that record have been destroyed pursuant to court rule. We conclude that a judge in the Superior Court acted properly when he denied four separate motions by the defendant to withdraw his pleas of guilty which had been tendered and accepted between ten and nineteen years before the motions were filed.
Represented by counsel, the defendant entered guilty pleas in the Superior Court in 1976, 1979, 1982, and 1985, to various crimes and was sentenced on his pleas.
On September 7, 1995, shortly after his Federal sentencing, the defendant filed four virtually identical motions, seeking to withdraw his guilty pleas, pursuant to Mass. R. Crim. P. 30 (b),
In connection with this appeal, the Commonwealth filed a motion (which has been allowed) to expand the record to include affidavits from the assistant district attorney arguing the appeal and the assistant district attorney who handled the 1982 plea. The former affidavit (from the Commonwealth’s appellate counsel) asserts, in relevant part, that (a) the judges who accepted the defendant’s pleas in 1976, 1979, and 1982 are deceased; (b) the tape recordings or transcripts of the defendant’s 1976, 1979, and 1982 plea hearings are missing and are believed to have been destroyed pursuant to court rules
2. As a general proposition of constitutional law, a guilty plea may be withdrawn or nullified if it does not appear affirmatively that the defendant entered the plea freely and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242-243 (1969). See Brady v. United States, 397 U.S. 742, 748 (1970); Commonwealth v. Foster, 368 Mass. 100, 106 (1975). Rule 12 (c) (3) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 866 (1979), requires that a defendant be informed on the record of the three constitutional rights which are waived by a guilty plea: the right to trial, the right to confront one’s accusers, and the privilege against self-incrimination. See Boykin v. Alabama, supra at 243; Commonwealth v. Lewis, 399 Mass. 761, 764 (1987). Moreover, the plea record must demonstrate either that the defendant was advised of the elements of the offense or that he admitted facts constituting the unexplained elements. See Henderson v. Morgan, 426 U.S. 637, 646 (1976); Commonwealth v. Colantoni, 396 Mass. 672, 678-679 (1986). Finally, the plea record must demonstrate that the defendant pleaded guilty voluntarily and not in response to threats or undue pressure. See Commonwealth v. Foster, supra at 107.
The burden is ordinarily on the Commonwealth to show that a challenged guilty plea was understandingly and voluntarily made. Commonwealth v. Duquette, 386 Mass. 834, 841 (1982), and cases cited. If the contemporaneous record of the plea proceedings is unavailable, “it may be reconstructed through testimony or other suitable proof of what happened in court when the guilty plea was taken.” Commonwealth v. Quinones, 414 Mass. 423, 432 (1993), and cases cited. The defendant
The stated principles are predicated on the assumption that the Commonwealth has within its control the means to produce, or conveniently reconstruct, the record of a plea, which then can be expeditiously consulted to refute or credit the defendant’s claims of invalidity. See, e.g., Commonwealth v. Quinones, supra (stenographic notes of the proceeding at which guilty pleas were accepted had been stolen, but trial judge was able to reconstruct the record based on his memory of the plea colloquy and reliance on his regular practice in the taking of guilty pleas); Commonwealth v. Foster, supra at 102 (transcript confirmed that judge had made no inquiry as to knowing and voluntary nature of plea); Commonwealth v. Correa, 43 Mass. App. Ct. 714, 716-717 & n.4 (1997) (transcript of plea colloquy showed no adequate inquiry by judge). These cases represent a situation where an actual record exists, or a record has become unavailable through no fault of the defendant, and the Commonwealth has provided a reconstruction.
A far different situation exists, however, when the defendant leaves his guilty pleas unchallenged for a lengthy period of time, so that the contemporaneous record of the plea is lost (by proper destruction of the stenographer’s notes or erasure of the tape recording pursuant to court rules), and means of reconstruction are made impractical or impossible due to the death or retirement of judges and court reporters, the unavailability of witnesses, the inherent weaknesses and failures of recollection, and other factors commonly associated with the passage of time. At this point, the absence of a record, and the inability effectively to reconstruct it, may be directly attributed to the defendant’s delay and may be said to be the defendant’s fault. In such a case, the defendant’s attack on his pleas by means of a rule 30 (b) motion necessarily proceeds on a basis extrinsic to the unavailable contemporaneous record. In assessing such a challenge, a judge is not required to accept the defendant’s self-serving affidavit, alleging constitutional defects in conclusory terms, as sufficient to satisfy the defendant’s burden, under rule
“A defendant’s naked claim that he did not receive a constitutionally adequate guilty plea colloquy does not automatically thrust upon the Commonwealth the burden of proving the existence of a contemporaneous record establishing that the plea was entered knowingly and voluntarily. Rather, the initial burden is on the moving defendant to present some articulable reason which the motion judge deems a credible indicator that the presumptively proper guilty plea proceedings were constitutionally defective, above and beyond a movant’s ‘credulity straining’ contentions regarding ‘questions the judge did not ask’ almost sixteen years earlier, Commonwealth v. Duest, 30 Mass. App. Ct. 623, 627 (1991) . . . and reliance upon the mere nonexistence of a transcript of the plea proceedings.”
Integral to this reasoning is the presumption of regularity and the important policy of finality. Rule 30 (b) motions, like the motions in this case, filed after conviction and sentencing are considered collateral attacks on final decisions. See Commonwealth v. Quinones, supra at 433 n.7; Commonwealth v. Nolan, 19 Mass. App. Ct. 491, 496 & n.8 (1985). Although rule 30 (b) allows for a new trial “at any time,” relief is limited to cases where “it appears that justice may not have been done.”
This requirement is particularly applicable when the challenge to a prior conviction arises in the sentencing enhancement context. Collateral attacks on convictions resulting from guilty pleas are becoming more commonplace in cases where a defendant seeks to question his plea colloquy only after becoming aware, usually several years after the fact, of the collateral consequence of State convictions to possible sentence enhancement under Federal law. See Commonwealth v. Pingaro, supra at 50-51 n.13; United States v. Payne, 894 F. Supp. 534, 537 n.7 (D. Mass. 1995) (“convictions initially reached in the courts of the Commonwealth ... are increasingly coming under intense scrutiny in the last ditch attempt [by defendants] to avoid the imposition of [enhanced Federal sentences]”). A defendant’s dilatoriness in not directly challenging his plea will often suggest that, when the plea was made, the defendant was satisfied with his arrangement; had been counselled as to its particulars; and could be lawfully deemed to have accepted what were the unforeseeable, but possible, consequences.
It is therefore not remarkable that the United States Supreme Court, dealing with this specific problem, has concluded that a Kentucky statute, which afforded a presumption of regularity to a previous conviction challenged by a defendant in the context
“Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. Respondent, however, never appealed his earlier convictions. They became final years ago, and he now seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boykin’s presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the ‘presumption of regularity’ that attaches to final judgments, even when the question is waiver of constitutional rights.”
Id. at 29. The Court went on to approve reliance by State courts on the presumption of regularity (in the circumstance of a nonexistent record) to reject challenges to long-closed convictions arrived at by pleas, stating that “it defies logic to presume from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights.” Id. at 30.
This court, and the Appeals Court, have alluded to Parke v. Raley in considering after the fact challenges by defendants to their guilty pleas. See, e.g., Commonwealth v. Quinones, supra at 433 n.7; Commonwealth v. Pingaro, supra at 50-51 n.13; Commonwealth v. Gonzales, 43 Mass. App. Ct. 926 (1997). Many other States have specifically relied on the Parke decision to reject collateral challenges to long-closed convictions by plea where sentencing enhancement is involved.
3. The defendant here has not met his burden. The defendant filed his rule 30 (b) motions for the purpose of challenging the enhanced Federal sentence imposed on him in 1995.
3. Based on the total lack of any credible or reliable evidence to support the defendant’s claims, the judge did not abuse his discretion in denying the defendant’s motions under Mass. R. Crim. R 30 (b) without further inquiry. The orders denying the defendant’s motions for withdrawal of his guilty pleas are affirmed.
So ordered.
The pleas were as follows:
(1) On November 16, 1976, after having exercised his de novo right to appeal from convictions in the District Court, the defendant entered guilty pleas, and was sentenced, on one charge of disorderly conduct and two charges of assault and battery on a police officer.
(2) On July 17, 1979, the defendant entered guilty pleas, and was sentenced, on charges of assault and battery by means of a dangerous weapon and armed robbery.
(3) On July 29, 1982, the defendant entered a guilty plea, and was sentenced, on a charge of unlawful possession of a controlled substance with intent to distribute.
(4) On June 26, 1985, the defendant entered guilty pleas, and was sentenced, on charges of conspiracy to violate controlled substances laws and unlawful possession of a controlled substance with intent to distribute.
All sentences on these convictions have been served.
In connection with the 1985 pleas, the defendant acknowledges that a transcript of the plea colloquy exists and concedes that, “[o]n the whole the trial judge’s examination of the defendant was completely adequate in satisfying constitutional requirements.” He argues, however, that the colloquy “failed to advise [him] of the possibility of the possible consequences of conviction if he were not a citizen, as required under M.G.L. c. 278, § 29D.” Because the defendant has provided no evidence that he has, or may in the future, suffer any of the consequences enumerated in G. L. c. 278, § 29D, as a result of his pleas, this argument, as to the validity of the defendant’s 1985 pleas, is without merit. See Commonwealth v. Mahadeo, 397 Mass. 314, 315 n.1 (1986) (judgment will only be vacated, pursuant to G. L. c. 278, § 29D, “[i]f the Court fails to so advise the defendant [that his plea may result in deportation, exclusion from admission to the United States, or denial of naturalization], and he later at any time shows that his plea and conviction may have one of the enumerated consequences . . .”).
See G. L. c. 221, § 27A, providing for the disposition of obsolete court papers or records as implemented in S.J.C. Rule 1:12, as appearing in 382 Mass. 717 (1981), allowing for the destruction of stenographic notes made in any court of the Commonwealth after the expiration of six years from the date the notes were taken (except for notes of a transcript which has been ordered and not completed, or notes subject to a court order), and Rule 211 (A) (4) of
The defendant’s motion to withdraw his 1985 pleas fails for the reasons stated in note 2, supra.
This standard is similar to that imposed by Federal law under which a defendant who wishes to withdraw a guilty plea alter sentence “must show that the plea proceedings were marred by ‘a fundamental defect which inherently results in a complete miscarriage of justice’ or ‘an omission inconsistent with the rudimentary demands of fair procedure.’ ” United States v. Ferguson, 60 F.3d 1, 2 (1st Cir. 1995), quoting advisory committee’s note to 1983 amendments to Fed. R. Crim. R 32 (d) (now Fed. R. Crim. P. 32 [e]).
See People v. Padilla, 907 P.2d 601, 607 (Colo. 1995); State v. Beloit, 123 Idaho 36, 37 (1992); Lingler v. State, 644 N.E.2d 131, 132 (Ind. 1994); State v. Patterson, 262 Kan. 481, 487 (1997); State v. Shelton, 621 So. 2d 769, 779-780 (La. 1993); People v. Carpentier, 446 Mich. 19, 37 (1994); State v. Perry, 938 P.2d 1325, 1327 (Mont. 1997); State v. White, 244 Neb. 577, 593 (1993); People v. Polanco, 192 A.D.2d 393, 394 (N.Y. 1993); State v. Stafford, 114 N.C. App. 101, 104 (1994); Lykken v. Class, 561 N.W.2d 302, 304 (S.D. 1997); Blankenship v. State, 858 S.W.2d 897, 902-903 n.5 (Tenn. 1993); Tatum v. State, 846 S.W.2d 324, 327 n.5 (Tex. Crim. App. 1993); Bruner v.
The procedure for challenging the use of State convictions in enhanced Federal sentencing was set out in Custis v. United States, 511 U.S. 485 (1994), where the United States Supreme Court held that, with the exception of claims that a prior conviction was obtained in violation of the defendant’s right to counsel, a defendant must first attack his State convictions in State courts or by Federal habeas review, and then, if successful, may “apply for reopening of any federal sentence enhanced by the state sentences.” Id. at 497.
