COMMONWEALTH v. BONNET (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Claude Bonnet, moved to withdraw his guilty pleas to the charges of possession with intent to distribute a class B substance, and possession with intent to distribute a class E substance.² After concluding that the pleas were supported by a factual basis, the judge denied the motion. We affirm.

Background. The defendant pleaded guilty to possession with intent to distribute a class B substance (Suboxone) and possession with intent to distribute a class E substance (Lyrica), among other charges. At the plea hearing, the Commonwealth informed the court that if the matter went to trial the evidence would show that police had found the defendant in possession of: (1) a prescription bottle with the name Michelle Knox for gabapentin; (2) a prescription box of Suboxone with the name Joan Moloney and fifty-five strips of Suboxone in it; (3) a bottle of Lyrica with the name removed and several different pills located inside, including Lyrica, gabapentin, clonazepam, and lorazepam; (4) an empty pill bottle with the name Joan Moloney on it; and (5) twelve hydroxyzine pills, forty-four doxepin pills, five venlafaxine pills, and seven melatonin pills, all prescribed to Michelle Knox. The Commonwealth further indicated that the items found were individually packaged.

Discussion. A motion to withdraw a guilty plea is treated as a motion for a new trial. See Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992). We give great deference to the judge's decision on a motion for a new trial, particularly where, as here, the motion judge was also the trial judge. See Commonwealth v. Moore, 408 Mass. 117, 125 (1990).

A guilty plea requires a “strong factual basis” for the charge, Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015), but it does not require that there be proof beyond a reasonable doubt. See Commonwealth v. Del Verde, 398 Mass. 288, 292 (1986). In determining whether such a strong factual basis exists, the 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.” Commonwealth v. Jenner, 24 Mass. App. Ct. 763, 773 (1987).

The defendant claims there was insufficient evidence in support of his intent to distribute. We disagree.

An intent to distribute can be reasonably inferred from the quantity of drugs, see Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 428 (1985) (“The quantity of a controlled substance alone may be sufficient circumstantial evidence to raise an inference of intent to distribute”); the individual packaging of the drugs, see Commonwealth v. Martin, 48 Mass. App. Ct. 391, 392-393 (1999) (individual packaging, combined with general circumstances, sufficient to infer intent where quantity is minimal); and the variety of drugs in one's possession, see Commonwealth v. Myers, 82 Mass. App. Ct. 172, 178 (2012) (variety, amount, and packaging permitted inference of intent to distribute).

Here, the defendant was in possession of at least 127 units of nine different prescription drugs: fifty-five strips of Suboxone, twelve hydroxyzine pills, forty-four doxepin pills, five venlafaxine pills, seven prescription melatonin pills, and an unknown number of Lyrica, gabapentin, clonazepam, and lorazepam pills. While there was no testimony regarding the number of Lyrica pills in the defendant's possession, for purposes of the plea, the judge could reasonably infer that the defendant's possession of Lyrica was consistent with distribution. Therefore, as we have previously made clear, “[i]t is a very uphill road for a party to establish that a judge acting on a motion for a new trial abused his discretion,” Commonwealth v. Hammond, 50 Mass. App. Ct. 171, 178 (2000), and, given the quantity, variety, and individual packaging of the drugs the defendant possessed here, we cannot conclude that the motion judge abused his discretion in denying the defendant's motion to withdraw his guilty pleas.

Order denying motion to withdraw pleas affirmed.

FOOTNOTES

2.   The defendant also moved, and was allowed, to withdraw pleas to other charges which are not the subject of this appeal.