48 Mass. App. Ct. 917 | Mass. App. Ct. | 2000
Postconviction motions to withdraw pleas are treated as motions for a new trial. Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). Under Mass.R. Crim.P. 30(b), 378 Mass. 900 (1979), a trial judge may allow the motion at any time if it appears that justice may not have been done. See Commonwealth v. Correa, 43 Mass. App. Ct. 714, 716 (1997). “The judge’s disposition of the motion will not be reversed unless it is shown to be an abuse of discretion that produces a manifestly unjust result.” Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997).
The transcript of Pixley’s plea colloquy demonstrates that none of the above three alternatives was satisfied. The judge did not explain the elements of the crime charged. He informed Pixley only that he was being charged with “the possession of cocaine with the intent to distribute it.” The Commonwealth argues that this charge is “self-explanatory,” relying upon Commonwealth v. Wiswall, 43 Mass. App. Ct. 722, 723 (1997). Unlike the defendant in Wiswall, however, there is no indication in the record that Pixley was “repeatedly” informed of the charge he was pleading to or that he had discussed the charges with his counsel as part of plea bargaining. Ibid. In addition, there is also no affirmative representation in the transcript by Pixley’s counsel that he had explained the elements of the charge to Pixley. See Colantoni, 396 Mass. at 679. Indeed, counsel reported that there were “communication problems” with his client.
Nor did Pixley admit to any facts constituting the elements of the charge. The judge informed Pixley that he had been told by the prosecutor, apparently not in Pixley’s presence, the “officers’ version of what happened.” Pixley recited his own version of events: he protested his innocence but did not admit to any facts.
We need not reach the issue of whether Pixley’s plea was made voluntarily. If the record demonstrates that a plea was not made intelligently, nothing more need be shown to establish the inadequacy of the colloquy for
'So ordered.
Pixley stated that he had only money in his possession when he was arrested, another man nearby had been seized with him but released, and he felt that he had been “harassed” by the police.