Supreme Judicial Court of Massachusetts, Worcester
Heard: March 7, 2019.
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
Supreme Judicial Court granted an application for direct
Jessica LaClair for the defendant.
Donna-Marie Haran, Assistant District Attorney, for the
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.
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. 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. See G. L. c. 269, § 10G (a).
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.
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.
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
Indictments and pleas.
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.
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.
Motion to vacate the conviction and sentence and for a
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.
Standard of review.
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) .