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Commonwealth v. Wentworth

Supreme Judicial Court of Massachusetts, Worcester

July 24, 2019

COMMONWEALTH
v.
EZARA WENTWORTH.

          Heard: March 7, 2019.

         Indictments found and returned in the Superior Court Department on April 21, 2011. A motion to vacate a sentence and for a new trial, filed on September 14, 2017, was considered by David Ricciardone, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Jessica LaClair for the defendant.

          Donna-Marie Haran, Assistant District Attorney, for the Commonwealth.

          Patrick Levin, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          CYPHER, J.

         This case presents an opportunity to clarify the application of the Massachusetts armed career criminal act (ACCA), G. L. c. 269, § 10G. Specifically, we address whether the "modified categorical approach," as discussed in our recent cases, is the appropriate analytical framework, in certain statutes, when determining whether a predicate offense under the ACCA involved "force." The defendant, Ezara Wentworth, was indicted for a number of unlawful firearm offenses.[1] The indictments charging the firearm offenses also alleged that the defendant previously had been convicted of three violent crimes and thus was subject to enhanced penalties under the ACCA. After negotiations with the Commonwealth, the defendant pleaded guilty to carrying a loaded firearm unlawfully as an armed career criminal with one predicate offense.[2] See G. L. c. 269, § 10G (a).

         Following this court's decision in Commonwealth v. Beal, 474 Mass. 341 (2016), where we declared the residual clause of the ACCA unconstitutionally vague, the defendant filed a motion to vacate the ACCA conviction and sentence and for a new trial, which was denied. The defendant appealed from the denial, and we granted his application for direct appellate review. On appeal, he argues that (1) his indictment was defective and therefore void because it did not set forth the alleged ACCA predicate convictions; (2) none of his predicate offenses is a violent crime under the ACCA; (3) his plea counsel was ineffective; and (4) his guilty plea on the ACCA charge was not entered into intelligently and voluntarily.

         We conclude that the defendant's indictment was not void because the indictment along with the grand jury minutes provided sufficient notice to the defendant of the crimes charged. We also conclude that the defendant's conviction of assault and battery was a conviction of a violent crime in these circumstances and could serve as a predicate offense under the ACCA. Finally, we conclude that counsel was not ineffective and that the defendant's guilty plea was made intelligently and voluntarily. We affirm.[3]

         1. Background.

         a. Arrest.

         We briefly discuss the facts, reserving more detail for later discussion. On February 13, 2011, responding to a report that several gunshots had been fired in the area, police encountered the defendant behind the wheel of a vehicle parked in the middle of the street. As police approached to question him, the defendant fled in his vehicle. Police pursued the defendant until he struck a parked vehicle, lost control of his vehicle, hit a snowbank, and came to a stop after hitting a utility pole. The defendant ran from the scene, but a police officer caught him. In the ensuing quarrel, the defendant struck an officer in the face. After the defendant's arrest, police found a loaded handgun in his vehicle.

         b. Indictments and pleas.

         A grand jury returned ten indictments against the defendant, including two ACCA level three indictments: one premised on possession of the handgun found in the vehicle, and another premised on possession of the ammunition in the handgun found in the vehicle. The ammunition-related indictment alleged that the defendant "had previously been convicted of three violent crimes or three serious drug offenses ... or any combination thereof totaling one," and the firearm-related indictment alleged that he "had previously been convicted of three violent crimes or three serious drug offenses, or any combination totaling three or more." The indictments did not list any prior convictions, except that the firearm-related indictment also alleged that that charge was a second or subsequent offense based on the defendant's previous conviction of carrying a dangerous weapon. The grand jury heard an officer testify about the defendant's previous convictions of resisting arrest, assault and battery, and carrying a dangerous weapon.

         The Commonwealth agreed to dismissal of the ammunition-related ACCA level three charge and to reducing the firearm-related ACCA level three charge to a level one charge. In exchange, the defendant pleaded guilty to the majority of the charges, including the ACCA level one charge. At the plea colloquy, the judge and the Commonwealth made it apparent that the defendant was pleading guilty to possession of a firearm with one prior ACCA conviction -- a domestic assault and battery from 2005. The prosecutor stated: "As to the predicate [ACCA] offense, [the defendant] was convicted in 2005 of a domestic assault and battery .... The allegations of that domestic for the [assault and battery] predicate, we have to show violence; that he . . . struck his girlfriend at the time in the face and shoved her down on the bed." To follow up, the judge asked the defendant, "[D]id you hear everything that the prosecutor just told me? . . . Are the facts as stated by the prosecutor correct?" The defendant answered, "Yes." Again, the judge ascertained from the defendant that he understood he was "being charged with a crime that involves an enhanced penalty or a more serious punishment," in this case, "a firearm as a career criminal, with a prior predicate offense." The judge warned the defendant that, by pleading guilty, he could face enhanced penalties in the future. The defendant acknowledged that he understood and pleaded guilty to the charges.

         c. Motion to vacate the conviction and sentence and for a new trial.

         After we declared that the residual clause of the ACCA was unconstitutional in Beal, the defendant filed a motion to vacate the ACCA conviction and sentence and for a new trial. The defendant's motion was denied without a hearing. The motion judge, who was also the plea judge, concluded that the defendant's guilty plea was made knowingly and voluntarily; that the predicate conviction of assault and battery was unquestionably violent; and that, by pleading guilty, the defendant waived any challenge to the grand jury proceedings.

         2. Standard of review.

         A judge may grant a motion for a new trial if it appears that justice may not have been done. Commonwealth v. Duart, 477 Mass. 630, 634 (2017), cert, denied, 138 S.Ct. 1561 (2018). The decision to deny such a motion lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or unless the trial was infected with prejudicial constitutional error. Commonwealth v. Nieves, 429 Mass. 763, 770 (1999). Therefore, we review the denial of a motion for a new trial for a significant error of law or other abuse of discretion. Duart, supra. We give special deference to the decision of a judge who was, as here, the plea judge. See Commonwealth v. Martin, 467 Mass. 291, 316 (2014) .

         3. Discussion.

         a. ...


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