COMMONWEALTH v. COOPER (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In 2010 the defendant pleaded guilty to assault by means of a dangerous weapon, four charges of negligent operation of a motor vehicle, and operating a motor vehicle with a revoked license. Nearly eight years later, the defendant moved to withdraw his plea to the charge of assault by means of a dangerous weapon, claiming that there was an insufficient factual basis to support the plea. The motion judge, who was also the plea judge, denied the motion, and the defendant appeals.

A motion to withdraw a guilty plea is treated as a motion for a new trial and may be allowed if “it appears that justice may not have been done.” Commonwealth v. Scott, 467 Mass. 336, 344 (2014). Our review of the judge's decision is limited to determining whether he “committed a significant error of law or other abuse of discretion” (quotation omitted). Id., quoting Commonwealth v. Sherman, 451 Mass. 332, 334 (2008).

“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 judge must “determine whether the defendant's admission, or his admission supplemented by the State's offer of proof, demonstrates a strong factual basis for the plea.” Hart, supra at 326, quoting DelVerde, supra at 300. For the offense of assault by means of a dangerous weapon, the Commonwealth must prove that the defendant committed either an “attempted battery” or a “threatened battery.” Commonwealth v. Porro, 458 Mass. 526, 530 (2010). Here, the judge concluded that the Commonwealth's recitation of facts at the plea hearing was sufficient to establish assault by means of a dangerous weapon under a theory of attempted battery. We agree.²

“A conviction of assault under a theory of attempted battery requires the prosecution to prove that the defendant ‘intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so.’ ” Id., quoting Commonwealth v. Melton, 436 Mass. 291, 295 (2002). According to the Commonwealth's recitation of facts, the defendant led State troopers on a lengthy car chase, beginning on Route 27 in Brockton, continuing onto Route 24 and Interstate Highway 93, and ultimately passing through four towns. During the chase, his “car veered almost head-on into one of the cruisers.” At that point the defendant's “thought was the car was going towards one of the cruisers.” The defendant agreed that the Commonwealth's recitation “fairly and accurately describe[d] [his] conduct in this case.” His admission to these facts, along with the reasonable inferences therefrom, was sufficiently strong to establish each element of attempted battery, including the element of intent. See Commonwealth v. Bolton, 92 Mass. App. Ct. 469, 475 (2017) (“The prosecutor's recitation of the facts need not establish each element of the crime beyond a reasonable doubt; [r]ather, a plea judge need determine only whether 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 [quotation and citation omitted]”). Cf. Commonwealth v. Arias, 78 Mass. App. Ct. 429, 435 (2010) (“defendant's overt act of putting the truck into drive and driving it at [the police officer] was more than sufficient to permit the inference that the defendant's conduct was intentional”).

Contrary to the defendant's arguments, the Commonwealth's recitation was not required to explain how the defendant's car came to be in a position to veer head-on toward a cruiser or how his decision to cause it to veer would be “logical.” The defendant was driving with sufficient control to have traveled on State roads and highways through four different towns, successfully evading several cruisers. It is a reasonable inference that he remained in control when the car veered toward a cruiser and thus that he intended it to do so.

In arguing otherwise, the defendant relies on his plea counsel's statement at the hearing that “[the defendant] was, at one point, heading towards the trooper” but “[h]e didn't even realize it at the time.” But the defendant neglects to mention that plea counsel concluded his statement by agreeing that “except that it happened the way the grand jury minutes state.” The statement is therefore ambiguous, and, more fundamentally, it was not part of the plea colloquy. Counsel made the statement at sentencing, after the defendant had already admitted to the Commonwealth's recitation of facts and after the judge had accepted the pleas. As explained, that recitation was sufficient to establish a factual basis for the defendant's plea to assault by means of a dangerous weapon.

Order denying motion to withdraw guilty plea affirmed.

FOOTNOTES

2.   We therefore need not decide whether the recitation of facts was sufficient to establish a threatened battery.