COMMONWEALTH v. TAVAREZ MORA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

As part of a plea agreement, the defendant pleaded guilty to a reduced charge of trafficking between 100 and 200 grams of a controlled substance (heroin) in violation of G. L. c. 94C, § 32E (c) (3) (count one) and to trafficking eighteen to thirty-six grams of a controlled substance (heroin), in violation of G. L. c. 94C, § 32E (c) (1) (count two). A third count was nol prossed. The defendant was given an agreed-upon sentence of from eight years to eight years and one day on count one of the indictment –- eight years is the mandatory minimum sentence on that count –- and of three and one-half years to three and one-half years and one day on count two, to be served concurrently. His argument before us is that he was informed by counsel that if he accepted the guilty plea, he would receive a sentence of only four years' imprisonment. He claims that he was told otherwise later on the day of sentencing, while being admitted into MCI Cedar Junction, when a Spanish-speaking officer informed him to his surprise that he was serving an eight-year sentence.

Almost three years later, on January 16, 2018, the defendant filed a notice of appeal of his sentence to the Appellate Division of the Superior Court. On March 27, 2018, the pro se defendant filed a motion in the trial court for leave to file a sentence appeal late. The next day he filed a motion for appointment of counsel for a sentence appeal. The trial judge denied both motions, noting, accurately, that “despite his current claims to the contrary, the defendant was advised of the recommended sentence and his understanding of it. (See plea colloquy).” The defendant filed a motion for reconsideration, which also was denied. Thirty days later he filed the notice of appeal in the instant case.

Because of the date on which the notice of appeal was filed, we have jurisdiction to review only the judge's denial of the motion to reconsider the judge's denial of the motion to allow a late notice of sentence appeal. In his brief, however, the relief that the defendant seeks is for us to “either allow his incarceration period to be of four ․ years, or allow the defendant to withdraw his plea.”

The mandatory minimum sentence for the offense to which the defendant pleaded guilty in count one is eight years. See G. L. c. 94C, § 32E (c) (3). No court, therefore, can reduce his sentence on that guilty plea to four years, or, indeed, to any period of time less than eight years. If a defendant has an allegation that he or she has been lied to by counsel and that, notwithstanding the plea colloquy, his guilty plea was made in reliance on this lie, the proper avenue for redress would be to file a motion for a new trial, and to seek to withdraw his guilty plea on the ground that it was not knowingly, intelligently, and voluntarily made. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 637 (2007). The defendant has not made any such motion.

With respect to what is actually before us, the denial of the motion for reconsideration of the denial of the motion seeking to enter a late sentence appeal, there was no abuse of discretion. Even if the defendant's factual claims were true –- and we note that there is neither an affidavit of trial counsel corroborating the facts that the defendant alleges before the court, nor any evidence that the defendant sought one –- a sentence appeal would be of no benefit to him. The Appellate Division lacks authority to reduce downwards a mandatory minimum sentence such as that imposed in this case.¹ The order denying the defendant's motion for reconsideration of the order denying the defendant's motion to file a late sentence appeal is affirmed.

So ordered.

FOOTNOTES

1.   Although, as the Commonwealth notes, the defendant did apparently file a late notice of sentence appeal two months prior to his initial motion for leave to file such a notice, and, for reasons unexplained on this record, the Appellate Division during the pendency of this appeal issued an order dismissing that appeal, we disagree with the Commonwealth's contention that this appeal has therefore been rendered moot. We note that the order of the Appellate Division states that it was made “on the record only,” and there is no indication that there was any briefing or argument before that court.