This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The pro se defendant, Raymond Cooke, appeals from an order denying his sixth motion to withdraw his guilty pleas and for a new trial. We affirm.
Since pleading guilty in 2006 to multiple serious felony indictments, the defendant has filed six similar motions seeking to withdraw his guilty pleas under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), alleging that a Superior Court judge (plea judge) failed to consider and give effect to mitigating evidence and improperly denied his request for funds to hire an expert to help prepare and present his defense. In the defendant's sixth motion, he repeated his claims that the plea judge did not adequately consider mitigating factors and erred in denying him expert funds. Additionally, he raised for the first time a series of claims to the effect that his pleas were not intelligent and voluntary. The motion was denied, on February 24, 2014, by another Superior Court judge, the plea judge having retired. The defendant appeals.
Under the doctrine of direct estoppel, a defendant is barred from seeking review of claims " actually litigated" and decided against him. Commonwealth v. Rodriguez, 443 Mass. 707, 710, 823 N.E.2d 1256 (2005). Here, the issues raised in the defendant's first and subsequent motions, that the plea judge failed to account for mitigating circumstances presented by the defense and refused the defendant's request for expert funds, have been repeatedly determined against him. Accordingly, we do not consider these claims.
The defendant's remaining claim, that his plea was not entered intelligently and voluntarily, was raised for the first time in his sixth motion and is waived. " A defendant generally may not raise any ground in a motion for a new trial that could have been, but was not, raised at trial or on direct appeal." Commonwealth v. Chase, 433 Mass. 293, 297, 741 N.E.2d 59 (2001). See Mass.R.Crim.P. 30(c)(2). Because the defendant had ample opportunity to raise his new claim in his first motion for a new trial (or in motions two through five), but did not, we consider it only to determine whether any claimed error presents a substantial risk of a miscarriage of justice. Commonwealth v. McGovern, 397 Mass. 863, 867-868, 494 N.E.2d 1298 (1986). Commonwealth v. Randolph, 438 Mass. 290, 293-294, 780 N.E.2d 58 (2002).
" A defendant's plea is intelligent when made with understanding of the nature of the charges (understanding of the law in relation to the facts) and the consequences of his plea (the legal consequences and constitutional rights he forgoes by pleading guilty rather than proceeding to trial); it is voluntary when free from coercion, duress, or improper inducements. . . . To assess the intelligence and voluntariness of a defendant's plea, we necessarily rely on the defendant's sworn responses to the judge's informed questions made in the solemnity of a formal plea proceeding. . . . While not solely determinative of the intelligence and voluntariness of a plea, the defendant's sworn statements at colloquy have undeniable bearing and heft in resolving a later claim to the contrary." Commonwealth v. Hiskin, 68 Mass.App.Ct. 633, 638-639, 863 N.E.2d 978 (2007). Here, the defendant argues that his plea lacked the requisite intelligence because the plea judge failed to conduct a " real probe," Commonwealth v. Williams, 71 Mass.App.Ct. 348, 354, 881 N.E.2d 1148 (2008), of his mental state despite knowledge that he suffered from mental illness. However, the plea judge specifically found that the defendant was " highly intelligent and highly articulate."
Although the defendant suffered from posttraumatic stress disorder and was under the influence of prescribed medication during the plea hearing, he agreed, under oath, that his " mental process" was unaffected. The plea judge was satisfied that the pleas were " sufficiently meditated by the defendant," ibid., quoting from Commonwealth v. Foster, 368 Mass. 100, 107, 330 N.E.2d 155 (1975), only after he " listened attentively to the defendant's answers," Commonwealth v. Williams, 71 Mass.App.Ct. at 355-356, that he understood the legal and constitutional consequences of his pleas. In administering a meaningful probe of the defendant, the plea judge was not required to do more. See id. at 354.
We reject the defendant's claim that his plea was entered without knowledge of the elements of the offenses. The plea judge described to the defendant at length the elements of the crimes to which he pleaded guilty and informed him of the maximum sentences. The plea judge found that the defendant was " fully aware of the charges against him," of " his rights in connection with those charges," and was free to pursue available alternatives. Compare Commonwealth v. Balliro, 370 Mass. 585, 590, 350 N.E.2d 702 (1976). Finding no basis to disturb the plea judge's contemporaneous evaluation of the defendant, we discern no substantial risk of a miscarriage of justice.
The plea judge carefully evaluated and informed the defendant before finding his pleas intelligent and voluntary. We affirm the order denying the defendant's sixth motion to ...