Argued
March 6, 2019.
[136
N.E.3d 1249] INDICTMENTS found and returned in the Superior
Court Department on July 1, 2010. A motion to withdraw guilty
pleas, filed on April 7, 2017, was considered by Thomas P.
Billings, J.
Amy
Codagnone, Boston, for the defendant.
Konstantin Tretyakov, Assistant District Attorney, for the
Commonwealth.
Present:
Rubin, Kinder, & Singh, JJ.
OPINION
RUBIN,
J.
Page 570
On
September 23, 2013, the defendant pleaded guilty to
trafficking in cocaine, see G. L. c. 94C, � 32E (b), four
counts of distribution of cocaine, see G. L. c. 94C, � 32A
(c), conspiracy to distribute cocaine, see G. L. c. 94C, �
40, possession of a firearm in the commission of a felony,
see G. L. c. 265, � 18B, and possession of ammunition without
a firearm identification card, see G. L. c. 269, � 10 (h)
(1). The plea judge accepted the defendant’s guilty pleas and
sentenced him on the trafficking charge to imprisonment of
not fewer than eight years, the minimum mandatory sentence on
that charge, and not more than nine years. The plea judge
also sentenced the defendant to not fewer than eight years
but not more than nine years on the distribution and
possession of a firearm in the commission of a felony
charges, to be served concurrently with the sentence on the
trafficking charge. On the conspiracy and possession of
ammunition without a firearm identification card charges, the
plea judge sentenced the defendant to concurrent two-year
probationary terms from and after the committed sentences.
Approximately
four years after sentencing, the defendant filed a motion to
withdraw his guilty pleas claiming that (1) they were made
without the assistance of counsel and without a valid waiver
of counsel, (2) they were not knowing and voluntary, and (3)
his counsel was ineffective for failing to pursue a
particular theory in support of a motion to suppress
evidence. A different judge (motion judge) denied the motion
without an evidentiary hearing, but revised and revoked the
prison sentence to not fewer than eight years but no more
[136 N.E.3d 1250] than eight years and one day.[1] The defendant
presses the same arguments on appeal. We vacate the order
denying the defendant’s motion and remand for further
proceedings.
Page 571
1.
Validity of the pleas.
We
turn first to the defendant’s claim that his pleas were not
knowing and voluntary. To satisfy the basic requirements of
due process, a guilty plea must be knowing -- courts
sometimes use the word "intelligent" -- and
voluntary. Commonwealth v. Furr, 454 Mass. 101, 106,
907 N.E.2d 664 (2009). See Commonwealth v. Hiskin,
68 Mass.App.Ct. 633, 637 n.5, 863 N.E.2d 978 (2007)
("Use of the term ‘knowing’ is but another way of
describing the longstanding requirement that a guilty plea be
made intelligently ..."). The judge must ensure that the
defendant "has a full understanding of what the plea
connotes and of its consequence." Boykin v.
Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d
274 (1969). He must understand the "direct
consequences" of his plea (citation omitted).
Commonwealth v. Roberts, 472 Mass. 355, 362, 34
N.E.3d 716 (2015). These consequences include the mandatory
minimum sentence to which the defendant will be subject. See
Commonwealth v. Rodriguez, 52 Mass.App.Ct. 572, 579,
755 N.E.2d 753 (2001) (even when defendant pleads guilty and
will be sentenced by agreement to straight probation, maximum
and mandatory minimum sentences that could be imposed
following violation of probation conditions are not
"collateral to the crime to which the plea [is] given.
Rather, [they are] a direct consequence of, and in
recognition of, the crime and the plea thereto ...").
See also Commonwealth v. Murphy, 73 Mass.App.Ct. 57,
66-67, 895 N.E.2d 764 (2008) (defective colloquy "risked
not adequately informing the defendant that failing to
successfully complete his period of probation could result in
the imposition of a period of incarceration for at least a
minimum of twenty years"). This means that a defendant
cannot tender a constitutionally adequate guilty plea without
knowing that mandatory minimum sentence. Indeed, this
proposition has been "clearly established" for at
least a decade. Jamison v. Klem, 544 F.3d 266, 278,
279 (3d Cir. 2008) ("it can not seriously be argued that
serving five years in prison pursuant to a mandatory minimum
sentence is a ‘collateral’ consequence of a guilty plea and
not a direct result of it"; it is "clearly
established" that a guilty plea entered without
knowledge of the mandatory minimum sentence violates due
process). See Boykin, supra at 243-244, 89 S.Ct.
1709. See also Vittitoe v. State, 556 So.2d 1062,
1064 (Miss. 1990) ("A canvas of state law authority
reveals no fewer than two dozen cases holding that guilty
pleas made with ignorance of a minimum or mandatory minimum
sentence are unenforceable"). The Commonwealth bears the
burden to show the plea was knowing and voluntary. Furr,
supra at 107, 907 N.E.2d 664.
Page 572
The
trafficking charge carries an eight-year mandatory minimum
sentence. G. L. c. 94C, � 32H. In his affidavit, the
defendant asserts that during plea negotiations, after he
told the prosecutor that he had "no intention of
pleading guilty to an 8-year sentence," the prosecutor
"declined to amend his terms but advised [the defendant]
of recent changes in legislation that would permit [him] to
earn good time on the trafficking sentence, with parole
eligibility in roughly half of the term."
The
motion judge found those assertions "creditable,"
but denied the defendant, [136 N.E.3d 1251] who was acting
pro se when he entered his guilty pleas, an evidentiary
hearing on the basis that the information given by the
prosecutor was not "material." Because we conclude
that the knowingness of the defendant’s pleas depends on
whether the prosecutor misinformed the defendant, we also
conclude that there was error in denying the defendant’s
motion in the absence of an evidentiary hearing or a finding
of fact on the question whether the defendant was in fact
told that by the prosecutor.
To
begin with, as the motion judge found, the defendant’s
assertion is creditable: there is no reason to disbelieve
that the prosecutor so advised the defendant, because at the
sentencing hearing a few days after the plea hearing, after
the judge sentenced the defendant, in response to the
defendant’s question about eligibility for parole and good
time credits, the prosecutor interjected, "I do believe
that because of the change in the statute that there has been
a change in the availability of good time for min[imum]
man[datory] sentences, so that is more favorable to the
defendant than it was before the change in the law." The
judge responded, "Right. But that’s [not] for us to be
involved." This indicated the prosecutor’s (and perhaps
even the plea judge’s) incorrect belief, consistent with the
defendant’s affidavit, that he would be eligible for parole
and good time credits, and that, hence, the defendant was not
in fact subject to an eight-year mandatory minimum sentence.
The Commonwealth does not dispute what the prosecutor told
the defendant, arguing only that "even if the
prosecutor’s assertions about these matters were incorrect
..., the defendant is not entitled to withdraw his
pleas."
If the
defendant, then pro se, was told by the prosecutor during
plea negotiations that if he (the defendant) pleaded guilty
to charges including trafficking in cocaine, G. L. c. 94C, �
32E (b), he would be subject to a minimum sentence of eight
years, but would be eligible for good time credits and
parole, such that he
Page 573
might be released after only "roughly half of the
term," it could well have formed the basis for the
defendant’s belief about the actual minimum sentence he
faced.[2] Because the question before us is the
voluntariness and subjective knowingness of the defendant’s
guilty pleas, the Commonwealth cannot prevail simply because
the incorrect statement by the prosecutor during plea
negotiations may have been inadvertent.
Even
assuming the prosecutor made the erroneous statement during
plea bargaining, the defendant could perhaps have gained
knowledge of the consequences of his pleas at the change of
plea hearing. The plea judge, after all, was required under
Mass. R. Crim. P. 12 (c) (3) (A) (ii) (c), as appearing in
470 Mass. 1501 (2015),[3] to tell the defendant both the maximum
and the minimum mandatory sentences that he faced on each of
the charges to which he was pleading. The plea judge,
however, articulated the maximum sentence but failed to
articulate the mandatory minimum sentence. This violated rule
12, but, more significantly for present purposes, and, as
relevant to the defendant’s argument, if the defendant were
given by the prosecutor the erroneous information the
defendant describes, the failure of the [136 N.E.3d 1252]
plea judge at the colloquy to inform the defendant of the
mandatory minimum sentence on the charges to which the
defendant was pleading guilty, and the absence of any other
evidence on the issue, means the Commonwealth cannot on the
record before us satisfy its burden to prove that the
defendant subjectively knew that, by pleading guilty, he
would be subject to a minimum of eight years of imprisonment.
As a
matter of due process, unknowing pleas are void. McCarthy
v. United States,394 U.S. 459, 466, 89 S.Ct. 1166, 22
L.Ed.2d 418 (1969). They must be vacated regardless of
whether the court concludes that, if properly informed about
the consequences of his plea, the defendant would have
nonetheless pleaded guilty. "As a general proposition of
constitutional law, a guilty plea must be vacated or
nullified unless the record of the plea proceedings
demonstrates that the defendant entered the plea ...