COMMONWEALTH v. WALSH (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from the denial of his motion to vacate his guilty plea, see Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), to the aggravated portion of the crime of assault and battery on a person sixty years or older or disabled, causing injury, G. L. c. 265, § 13K (b). He argues that the motion judge (who was also the plea judge) abused his discretion in denying the motion because there was an inadequate factual basis for the aggravating factor of the victim's age or disability. We affirm.

We review the denial of a motion for new trial for “a significant error of law or other abuse of discretion,” Commonwealth v. Grace, 397 Mass. 303, 307 (1986), while giving “substantial deference to a decision denying a rule 30 (b) motion ․ when the judge passing on the motion is the same judge who heard the plea.” Commonwealth v. Grant, 426 Mass. 667, 672 (1998). A judge may not accept a guilty plea unless “the evidence which he had 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.” Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015), quoting Commonwealth v. Jenner, 24 Mass. App. Ct. 763, 773 (1987). Each element of the charged crime must have a “strong factual basis,” Commonwealth v. Hart, 467 Mass. 322, 325-326 (2014), but “the factual basis for a guilty plea need not satisfy the standard of review for the denial of a motion for a required finding of not guilty.” Armstrong, supra. The necessary factual foundation may be supplied by direct or circumstantial evidence, or some combination of the two.

Here, the defendant contends that there was inadequate factual basis from which to infer that the victim was over sixty years old or disabled to the degree of being unable to take care of himself. See G. L. c. 265, § 13K (a)² and (b). To be sure, there was no direct evidence on either point; however, the circumstantial evidence amply supported both. The defendant, who had some medical training, was, by his own admission, the victim's live-in caretaker. According to his plea counsel, “[the defendant] was looking after [the victim].” It is no far leap of logic to infer that the victim therefor needed such live-in caretaking assistance. At the time of the assault, the defendant was fifty-eight years old and, while the victim's precise age was not disclosed during the plea, the prosecutor stated that there was “an age disparity [between the victim and the defendant] that certainly was concerning.” That the disparity was “concerning” allowed the reasonable inference that the victim was at a disadvantage (i.e., older) age-wise. In addition, the disparity would not be “concerning” unless it was significant -- more than a couple of years. Together, these facts permitted a reasonable inference that the victim was over sixty. In addition, the victim was present during the plea and the judge could observe and consider his appearance in conjunction with the facts we have recited above. See Commonwealth v. Pittman, 25 Mass. App. Ct. 25, 28 (1987) (“there must be some evidence [of age] in addition to physical appearance”). We note also that plea counsel stated that she had explained the elements of the charge to the defendant, and that the defendant admitted that the facts recited by the prosecutor were true.

In these circumstances, we discern no abuse of discretion in denying the defendant's motion to vacate the portion of his plea relating to the aggravating factors of the offense.

Order denying motion to vacate guilty plea as to aggravated portion of crime charged affirmed.

FOOTNOTES

2.   “Person with disability” is defined as “a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual's ability to provide for his or her own care or protection.”