COMMONWEALTH v. DEPINA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Marcell DePina, appeals from an order denying his motion for new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). The defendant pleaded guilty to seven counts charging him with, among other things, assault and battery by means of a dangerous weapon (ABDW), to wit: a motor vehicle. He later moved to withdraw his plea to that charge, asserting that there was no basis in fact for the conviction. We affirm.

We review the judge's denial of the defendant's motion for “an abuse of discretion that produces a manifestly unjust result.” Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997), citing Commonwealth v. Little, 384 Mass. 262, 269 (1981). “A judge may not accept a guilty plea ‘unless there are sufficient facts on the record to establish each element of the offense.’ ” Commonwealth v. Hart, 467 Mass. 322, 325 (2014), quoting Commonwealth v. DelVerde, 398 Mass. 288, 297 (1986). The factual basis requirement is distinct from the requirement that a defendant's plea be made voluntarily and intelligently. See Hart, supra at 325-326; Mass. R. Crim. P. 12 (c) (5) (A), as appearing in 470 Mass. 1501 (2015). In reaching a determination as to the sufficiency of a factual basis for conviction, the judge may consider the Commonwealth's recitation, “any information [the judge] has obtained in the plea hearing, ․ [and any] reasonable inferences which may be drawn therefrom.” Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015), quoting Commonwealth v. Jenner, 24 Mass. App. Ct. 763, 773 (1987).²

The defendant argues that the recitation of facts failed to establish a strong factual basis for the charge of ABDW because the prosecutor did not state facts sufficient to allege that the dangerous weapon (the vehicle) was “likely to” produce death or serious bodily injury. This argument is misplaced. The defendant was indicted on the charge of ABDW pursuant to G. L. c. 265, § 15A (b), where serious bodily injury is not an element of the offense.³ Because a motor vehicle is not a per se dangerous weapon, the question is “whether the object, as used by the defendant, [was] capable of producing serious bodily harm.” Commonwealth v. Mattei, 455 Mass. 840, 844 (2010), quoting Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001). During the recitation of facts, the prosecutor said that the defendant kicked and “threw [the victim] into a vehicle that was parked nearby as he continued to assault her.” The prosecutor further indicated that police officers observed that a mirror on the vehicle where the assault began was bent forward, and that the police noticed blood on the street and a large bump on the victim's forehead. Moreover, when the defendant was asked by the judge, “And did you use a motor vehicle as a weapon in attacking her?” the defendant answered, “Yes.”

A judge accepting a guilty plea “is not required to determine whether the defendant is or is not guilty of the offense charged.” Jenner, 24 Mass. App. Ct. at 773. Rather, a plea judge “need determine only whether the evidence which he has heard, plus any information he has obtained in the plea hearing, is sufficient, when considered with reasonable inferences which may be drawn therefrom, to support the charge to which the defendant is offering a plea of guilty.” Id. Here, the defendant's conduct and the manner in which he used the vehicle provided a strong factual basis for the defendant's plea to ABDW. The motion for new trial was properly denied.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   A plea judge “must [also] determine by means of an adequate colloquy that the plea tendered is both intelligently and voluntarily made.” Commonwealth v. Correa, 43 Mass. App. Ct. 714, 717 (1997), citing Commonwealth v. Duest, 30 Mass. App. Ct. 623, 631 (1991). The defendant concedes that he is not challenging the intelligence and voluntariness of his plea.

3.   General Laws c. 265, § 15A (c) (i), requires that the Commonwealth prove that the dangerous weapon produced serious bodily injury; G. L. c. 265, § 15A (b), does not.