Heard: March 6, 2019
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.
Codagnone for the defendant.
Konstantin Tretyakov, Assistant District Attorney, for the
Present: Rubin, Kinder, & Singh, JJ.
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 (c0, 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.
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
than eight years and one day. The defendant presses the same
arguments on appeal. We vacate the order denying the
defendant's motion and remand for further proceedings.
Validity of the pleas.
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
(2009). See Commonwealth v. Hiskin, 68 Mass.App.Ct.
633, 637 n.5 (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. 239,
244 (1969). He must understand the "direct
consequences" of his plea (citation omitted).
Commonwealth v. Roberts, 472 Mass. 355, 362 (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 (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 (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. 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.
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."
motion judge found those assertions "creditable,"
but denied the defendant, 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
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."
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 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.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.
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),  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 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.
matter of due process, unknowing pleas are void. McCarthy
v. United States, 394 U.S. 459, 466 (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
knowingly and voluntarily. [Boykin, 395 U.S. at
242-243]." Rodriguez, 52 Mass.App.Ct. at 581.
prosecutor did misinform the defendant as he asserts, and if
he, in fact, subjectively did not understand at the time of
the pleas that he was subject to a minimum mandatory
sentence, he is entitled to have the trafficking guilty plea
vacated. There must therefore be a finding of fact on these
issues by the motion judge. Consequently, we will vacate the
order denying the defendant's motion and remand for such
finding by the motion judge, who may on remand also hold an
evidentiary hearing at which either party may introduce
evidence on one or both issues, i.e., whether the defendant
was misinformed and what his subjective understanding was.
Commonwealth posits initially that "the defendant was
aware of the minimum sentence for trafficking in cocaine . .
., but also that he was asking the court to impose exactly
that sentence understanding that the term of his imprisonment
could not be 'any lower than that.'" But the
question is not whether the defendant knew the minimum
sentence. It is whether he knew it was mandatory, that is,
that he would not be eligible for good time credits and
this question, the Commonwealth argues that it does not
matter whether he knew that, relying primarily on
Commonwealth v. Indelicato, 40 Mass.App.Ct. 944, 945
(1996), a case involving an alleged failure of
defendant's counsel to advise the defendant that his
conviction would limit his ability to obtain a firearm
permit, in which we said, "A guilty plea is not
necessarily regarded as having been made involuntarily or
unintelligently because a defendant has received inaccurate
or incomplete advice from his counsel concerning the penal
consequences of the plea." In ...