COMMONWEALTH v. CALDERON (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The Commonwealth appeals from an order allowing the defendant's motion for a new trial in which he sought to withdraw his guilty plea to distributing a class B substance, G. L. c. 94C, § 32A (a). The chemist Annie Dookhan was one of the chemists who analyzed the drugs in this case. However, it is the fact that Dookhan was the chemist in an earlier drug possession case in which Calderon was also the defendant (and in which his motion to withdraw his guilty plea was allowed) that formed the basis for the new trial motion at issue here. The Commonwealth argues that the motion judge committed an error of law in allowing the defendant's motion because the earlier case was a separate case, whose tainted drug analysis does not affect this case. We agree and reverse the order allowing the motion.

Background. The case before us began on April 20, 2010, when a complaint issued from the South Boston Division of the Boston Municipal Court Department against the defendant for distribution of a class B drug (South Boston case). On July 14, 2010, the defendant pleaded guilty in the South Boston case.

On August 12, 2010, after the defendant had pleaded guilty in the South Boston case, a substance that the police had seized in that case was analyzed at the William A. Hinton State Laboratory Institute (Hinton drug lab) and found to be cocaine. Dookhan was one of the two chemists who signed the drug certificate.

On March 25, 2010, before the South Boston case complaint had issued, a complaint issued against the defendant from the Roxbury Division of the Boston Municipal Court Department for possession of a class B drug with the intent to distribute, and possession of a class B drug (Roxbury case). On April 14, 2010, Dookhan was one of the chemists at the Hinton drug lab who analyzed the substance that police had seized in the Roxbury case. On May 24, 2010, after the substance had been analyzed, the defendant pleaded guilty in the Roxbury case.²

Several years later, on September 2, 2016, the defendant moved for a new trial in the Roxbury case. The motion was allowed because Dookhan's involvement in the drug analysis preceded the defendant's guilty pleas.³ The key distinction between the Roxbury case and the South Boston case is that the tainted drug analysis occurred before the pleas in the Roxbury case, but after the defendant's plea in the South Boston case.

On September 9, 2016, the defendant also moved to withdraw his guilty plea in the South Boston case, under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), specifically citing Commonwealth v. Scott, 467 Mass. 336 (2014). The defendant submitted a police report, and affidavits from both his plea counsel and himself in support of the motion. After a nonevidentiary hearing, the motion judge, who had also been the plea judge, summarily allowed the motion in a margin endorsement.

Discussion. It is axiomatic that “[w]e review an order granting a new trial motion to determine if the judge committed ‘a significant error of law or other abuse of discretion.’ ” Scott, 467 Mass. at 344, quoting Commonwealth v. Sherman, 451 Mass. 332, 334 (2008). Additionally, “[p]articular deference is to be paid to the rulings of a motion judge who served as the trial judge in the same case.” Scott, supra. However, where, as here, the question is one of law, we evaluate the claim independently. See Commonwealth v. Drayton, 479 Mass. 479, 480 (2018).

The landmark case of Scott, 467 Mass. 336, drawing from Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006), established that the “egregious misconduct” of chemist Dookhan provides a basis for allowing the withdrawal of a defendant's guilty plea. The first prong of the analysis requires that “the defendant ․ show the egregious government misconduct preceded the entry of his guilty plea ․” Scott, supra at 347. In our analysis, we need proceed no further than this first prong.⁴

The analysis adopted in Scott makes clear that for the “egregious government misconduct” of Dookhan to be actionable it had to “precede[ ] the entry of [the defendant's] guilty plea.” Scott, 467 Mass. at 347. See Commonwealth v. Ruffin, 475 Mass. 1003, 1004 (2016) (“For the presumption articulated in Scott to apply, it is incumbent on the defendant to establish that the presumptive governmental misconduct antedated the plea”). There is no question that in the case before us Annie Dookhan's analysis took place after the defendant had entered his guilty plea. The defendant cannot meet the threshold requirement set forth in Scott. Scott, supra.

The defendant argues that, nonetheless, the motion judge did not commit an error of law in allowing the defendant's motion because his plea, and the accompanying sentence, in the Roxbury case influenced his decision to plead guilty in the South Boston case. In the case of Commonwealth v. Wallace, 92 Mass. App. Ct. 7, 11-12 (2017), the defendant argued that the misconduct of chemist Sonja Farak in his previous 2010 drug case affected the 2011 drug case which was the subject of the case before the court.⁵ This court reasoned that the government misconduct in the 2010 case was “far too attenuated” from the 2011 case to have affected it. Id. Similarly here, the Roxbury case is not directly connected to the case before us.⁶

Because the analysis of the substance at issue here by Dookhan, which constituted the egregious government misconduct, occurred after the defendant pleaded guilty, the motion judge erred in allowing the defendant's motion for new trial.

Order allowing motion for new trial reversed.

FOOTNOTES

2.   In the Roxbury case the defendant was sentenced to concurrent terms of nine months. In the South Boston case the defendant was sentenced to two years, with nine months to be served (concurrently with the sentence in the Roxbury case), and the balance suspended for two years.

3.   The Commonwealth entered a nolle prosequi to both counts in the Roxbury case.

4.   The second prong requires that “the defendant ․ demonstrate a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct.” Scott, 467 Mass. at 354-355.

5.   Farak was not the chemist in the case on appeal.

6.   The defendant is also not helped by this court's decision in Commonwealth v. Williams, 89 Mass. App. Ct. 383 (2016). An indictment charging the defendant with unlawful possession of a firearm also alleged that the defendant had been previously convicted of three predicate offenses, which would subject him to enhanced sentencing as an armed career criminal. One of the predicate offenses was a 2006 conviction of possessing drugs that had been analyzed by Dookhan. Although this court determined that the appeal was premature, the court commented that Dookhan's misconduct might have affected the plea on the firearm charges. Id. at 390. The court further observed, “A mistake regarding the direct consequences of pleading guilty, including the maximum possible sentence of the crime charged, undermines the validity of a guilty plea.” Id. Here, in contrast, the Roxbury convictions had no effect on the sentence that the defendant received in the South Boston case.