63 Mass. App. Ct. 503 | Mass. App. Ct. | 2005
The defendant pleaded guilty to indecent assault
The facts, in brief, are these. The defendant was working as a prostitute and was approached by an undercover police officer. He asked if she “was working.” In the process of their negotiations, the defendant several times invited the officer to touch her breasts. She then placed her hands on the officer’s genital area. This formed the basis for the indecent assault and battery charge.
The defendant claims first that she should be permitted to withdraw her guilty plea because she was not informed that she could be required to register as a sex offender. The mandate that a defendant be informed that she could be required to register derives from G. L. c. 6, § 178E(d), as appearing in St. 1999, c. 74, § 2, which provides, “Any court which accepts a plea for a sex offense shall inform the sex offender prior to acceptance and require the sex offender to acknowledge, in writing, that such plea may result in such sex offender being subject to the provisions of sections 178C to 178P, inclusive.” The last sentence of § 178E(d), however, states: “Failure to so inform the sex offender shall not be grounds to vacate or invalidate the plea” (emphasis supplied). Compare G. L. c. 278, § 29D (specifically permitting defendant to withdraw guilty plea if he
Generally, under Massachusetts law, failure to inform a defendant of collateral or contingent consequences of a plea does not render a plea involuntary. See, e.g., Commonwealth v. Hason, 27 Mass. App. Ct. 840, 843 (1989). The possibility of registration as a sex offender would be a contingent or collateral consequence of such a plea: minimum due process requires that a defendant be granted a hearing before being required to register as a sex offender, see Doe v. Attorney Gen., 426 Mass. 136, 137 (1997); thus, not only is the possibility that the defendant could be required to register as a sex offender an uncertainty, it is also a decision made not by the trial court, but by the sex offender registry board. See Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998). The fact that an entity outside the court decides whether the defendant ultimately must register is the very definition of a collateral consequence. Cf. Commonwealth v. Fraire, 55 Mass. App. Ct. 916, 918 (2002) (“it is not the indeterminate nature of immigration consequences that makes them collateral in nature; it is the fact that such consequences are handed down by a body entirely separate from the court that accepts the guilty plea”). General Laws c. 278, § 29D, which requires that information as to possible immigration consequences be given a defendant before a plea is accepted, carves out an exception to
2. The defendant next argues that she should be permitted to withdraw her guilty plea because the judge exceeded the defendant’s requested sentence but never gave the defendant an opportunity to withdraw her plea. See G. L. c. 278, § 18; Dist./Mun.Cts.R.Crim.P. 4(c) (1996). See also Mass.R.Crim.P. 12(c), as amended, 399 Mass. 1215 (1987).
At the hearing on the motion to withdraw the guilty plea, the judge (who was the same judge who had accepted the defendant’s guilty plea) commented, “All parties should be aware of the fact that I am very familiar with this case,” and stated further, “There was a lengthy period of time spent discussing the tender of plea with [defense counsel] and you see some inaudible indications on the side. I recall telling [defense counsel] to make sure that his client was aware of the ramifications of her tender of her plea. She [i.e., the defendant] chose to do that at that time.”
3. Finally, we find no merit in the defendant’s ineffective assistance of counsel claim. The defendant’s assertion that she had a valid defense — consent — to the charge of indecent assault and battery is without merit in the circumstances of this case. Here, neither the facts admitted to nor the more expanded version of the facts in the police report suggest that the undercover officer consented to the touching. The mere fact that the undercover officer asked the defendant if she “was working” does not mean that he consented to having his genitals touched. According to the description of the incident in the police report, after the undercover officer asked if she was working, the defendant asked him to grab her breasts. He refused, saying the area was too public. The defendant then “grabbed the officer by placing her hand on his crotch and squeezing.” Since the facts support a conclusion beyond a reasonable doubt that the victim did not consent to the touching, it is unlikely that the defendant was deprived of a “substantial ground of defence” in that respect. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Further, counsel was not ineffective in allegedly failing to inform the
Order denying motion to withdraw guilty plea and for a new trial affirmed.
She also pleaded guilty, on the same day, to negotiating sex for a fee. G. L. c. 272, § 53A. That plea is not at issue in the present appeal.
In prior times, perhaps her attorney would have entered the defense of “molliter manus imposuit” (“he [or she] [only] gently laid hands upon” the victim), a term “used in actions of trespass and assault to justify a defendant’s use of force as reasonable.” Black’s Law Dictionary 1021 (7th ed. 1999).
The defendant also relies in part on Mass.R.Crim.P. 12(c)(3)(B), which provides that prior to tender of a guilty plea, a defendant must be informed “of any different or additional punishment based upon . . . sexually dangerous persons provisions of the General Laws, if applicable.” See Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 580-581 (2001). The portion of the rule relied on, however, is directed to situations where a defendant may face involuntary commitment pursuant to G. L. c. 123A and, contrary to the defendant’s contention, does not speak to G. L. c. 6, §§ 178C - 1780 (the Sex Offender Registration and Community Notification Act). Moreover, although indecent assault and battery is included in the “sexual offense[s]” listed in the definitions in G. L. c. 123A, § 1, there is nothing in the record to suggest that the defendant meets the remaining portion of the definition of “sexually dangerous person” set out in that section. Therefore, it seems unlikely that advisement of the possibility of proceedings pursuant to c. 123A would have made any difference in the decision to plead guilty. Cf. Commonwealth v. Correa, 43 Mass. App. Ct. 714, 718 (1997) (defendant must show that alleged omission made a difference in decision to plead guilty).
See now Mass.R.Crim.P. 12(c), as amended, 442 Mass. 1511 (2004), applicable to cases under indictments or complaints filed on or after September 7, 2004.
Our interpretation of the plea hearing is guided by the transcript of the recorded proceedings of the plea hearing supplemented, for parts marked “inaudible” or “unintelligible,” by what is captioned in the appendix as an “unofficial” transcript, apparently prepared by the parties, which the judge at the motion hearing (who was also the plea judge) described as “pretty accurate.” See generally Mass.R.A.P. 8(b)(3)(v), 388 Mass. 1106 (1983), and 8(c)-(e), 378 Mass. 932 (1979); Commonwealth v. Harris, 376 Mass. 74, 78-80 (1978).