COMMONWEALTH v. LEVINE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In 2009, pursuant to a plea agreement, the defendant entered guilty pleas on indictments charging trafficking in heroin, distribution of heroin, and possession of cocaine with intent to distribute. The charges stemmed from two in-person sales by the defendant to an undercover police officer. In 2018 the defendant sought to withdraw his guilty pleas on the ground that Annie Dookhan had conducted the drug analysis in his case. A judge of the Superior Court denied the motion. The defendant appeals, arguing that he is entitled to relief under Commonwealth v. Scott, 467 Mass. 336 (2014). We affirm.

Background. On February 6, 2008, Officer James Stoddard of the Boston Police Department completed the first of two controlled “buys” from the defendant. On that date Stoddard contacted the defendant and inquired about purchasing a “finger,” a street term that refers to approximately ten grams of heroin. The defendant quoted Stoddard a price of $500. The two ultimately met at a public park, where Stoddard received a cigarette box containing a plastic bag of suspected heroin in exchange for $500. The defendant told Stoddard that in future transactions he would send “runners” to deliver drugs. Boston police conducted a field test on the purchased substance, which indicated the presence of heroin.

Two weeks later, on February 20, Stoddard called the defendant and requested two “fingers” of heroin. Stoddard and the defendant met at the same location; the defendant gave Stoddard two bags of suspected heroin, for which Stoddard paid $1,000 with prerecorded bills. The defendant told Stoddard that he would consider selling Stoddard more “fingers” going forward. After the defendant left the park, Boston police officers stopped him and recovered the prerecorded bills.

The police obtained and executed a search warrant for the defendant's apartment. There they found sixteen “fingers” of suspected heroin, a plastic bag of white powder suspected to be cocaine, scales, packaging materials, ledgers, and other evidence of drug distribution activity. The defendant's fingerprints were found on baggies and a scale.

The substances from both controlled buys and from the search were sent to the Hinton State Laboratory for testing, where Annie Dookhan served as the primary chemist. Dookhan signed drug analysis certificates that state that all of the “fingers” at issue contain heroin, and weighed approximately ten grams each. She also signed a certificate that indicates that the bagged white powder from the apartment was cocaine.

On May 8, 2008, the defendant was indicted in the Superior Court on six charges: (1) distribution of heroin, see G. L. c. 94C, § 32; (2) trafficking in 100 to 200 grams of heroin, see § 32E (c) (3); (3) trafficking in fourteen to twenty-eight grams of heroin, see § 32 (c) (1);³ (4-5) two counts of distribution and trafficking of heroin in a public park, see § 32J; and (6) possession of cocaine with intent to distribute, see § 32A (c). At that time, § 32E (c) (3) carried a mandatory minimum sentence of ten years in prison;⁴ § 32J carried a mandatory minimum of two and one-half years. Pursuant to a plea agreement, in January 2009 the defendant pleaded guilty to charges 1, 3, and 6, and to a lesser charge of trafficking twenty-eight to ninety-nine grams in lieu of 100 to 200. Charges 4 and 5 were dismissed. The defendant received concurrent seven-year prison sentences on the trafficking charges, and concurrent three-year probation terms on the distribution and possession charges.

In April 2018 the defendant filed a motion to withdraw the plea. The motion was heard by a judge other than the judge who presided over the 2009 plea hearing, and was denied after a hearing. The defendant's motion to reconsider was also denied. The defendant timely appealed.

Discussion. The defendant argues that the motion judge abused his discretion by denying the motion to withdraw the plea. We review an order denying such a motion, as we would an order denying a motion for a new trial, for abuse of discretion or significant error of law. Commonwealth v. Resende, 475 Mass. 1, 12 (2016). “Under Mass. R. Crim. P. 30 (b), a judge may grant a motion for a new trial any time it appears that justice may not have been done” (quotation omitted). Commonwealth v. Lewis, 96 Mass. App. Ct. 354, 357 (2019).

The decision in Scott, 467 Mass. at 336, addresses a rule 30 (b) motion to withdraw a guilty plea in the specific context of defendants affected by Dookhan's misconduct. Incorporating the teaching of Ferrara v. United States, 456 F.3d 278, 290-297 (1st Cir. 2006), Scott sets forth a two-prong test: the defendant must show (1) egregious government misconduct that implicates the defendant's due process rights and that predated the entry of the plea; and (2) a “reasonable probability that [the defendant] would not have pleaded guilty had [the defendant] known of [the government] misconduct” (quotation omitted). Resende, 475 Mass. at 3. Further, Scott held that “where Dookhan signed the certificate of drug analysis as either the primary or secondary chemist in the defendant's case, the defendant is entitled to a conclusive presumption” that egregious government misconduct occurred. Scott, supra at 338. In this case, Dookhan signed the drug analysis certificates as primary chemist. Thus, the first Scott prong is satisfied.

The second Scott prong requires courts to apply a multifactor analysis to determine whether, based on the totality of the circumstances, the defendant has demonstrated a reasonable probability that he would not have pleaded guilty had he known of the government misconduct. Scott, 467 Mass. at 356-358. There are as many as thirteen factors identified in Scott that courts should consider, although not all will be relevant in each case and some may carry greater weight than others. See Resende, 475 Mass. at 16-17.

The judge concluded that the defendant did not satisfy his burden under Scott for three primary reasons. First, the evidence of the defendant's involvement in drug trafficking was “overwhelming.” Second, the defendant received a favorable deal when the Commonwealth agreed to dismiss two charges and to reduce the amount of heroin in a third charge, such that the defendant received seven-year concurrent sentences where otherwise he would have faced a minimum sentence of ten years. Third, the defendant failed to prove that plea counsel would have advised him to go to trial instead of pleading guilty, and also failed to show the defendant would have acted on this advice if received.

We agree, for substantially the reasons cited by the judge. As to the strength of the Commonwealth's case, even without Dookhan's involvement the evidence that the defendant was involved in trafficking heroin was very strong. The defendant twice sold Stoddard “fingers” of suspected heroin. Stoddard would have been able to testify that he twice spoke directly with the defendant and asked to buy those “fingers,” that “finger” is a known street term for ten grams of heroin, and that the defendant then appeared and provided Stoddard a substance in direct response to Stoddard's request. The provision of such substance by the defendant under the circumstances amounted to a representation -- an admission -- that the substance provided was in fact heroin. See Resende, 475 Mass. at 17 (rational fact finder could infer that undercover officer “received what he had requested”). Stoddard further could have testified to the defendant's behavior on these occasions, which demonstrated that the defendant knew he was selling heroin and was willing to sell more heroin to Stoddard in the future. Moreover, the search of the defendant's apartment yielded sixteen “fingers,” a bag of suspected cocaine, ledgers, and a scale and baggies that bore the defendant’s fingerprints.

In light of this evidence, the critical question is whether, without the Dookhan certificates, the Commonwealth would have been able to prove the chemical composition and the quantities of drugs necessary to support the charges. The defendant contends that there was scant direct evidence of composition and weight, and that accordingly he would have had a substantial defense available to him at trial. We disagree.

As noted above, here there was ample evidence, especially when taken together with the positive field test,⁵ that would have permitted a reasonable fact finder to find that the substance the defendant sold was heroin, and that the amount exceeded one hundred grams. See Commonwealth v. Antone, 90 Mass. App. Ct. 810, 817-818 (2017). See also Commonwealth v. Dawson, 399 Mass. 465, 467 (1987). The defendant suggests that the evidence was insufficient to show that the sixteen “fingers” found in his apartment were actually heroin, as opposed to a counterfeit. In light of all of the circumstances, however -- the multiple transactions, the positive field test, the identical packaging in “fingers” of all of the suspected heroin at issue, and the other indicia of trafficking activity in the apartment -- the jury would have been able to find otherwise.

Moreover, the defendant received a significant benefit from pleading guilty. The charges on which the defendant was indicted carried mandatory minimum prison terms of ten years and two and one-half years. Going to trial would have risked more than the mandatory minimums; the greater trafficking charge alone carried a maximum sentence of twenty years. However, the plea agreement reduced that charge, eliminated the public park charges, and provided for seven years of imprisonment and three years of probation. The benefit of the plea agreement to the defendant is a significant factor in evaluating whether the defendant reasonably would have chosen to go to trial. See Scott, 467 Mass. at 355. Here that benefit -- avoiding at least three years of mandatory prison time, and potentially more -- was substantial. Accord Antone, 90 Mass. App. Ct. at 819 (plea agreement “eliminated potentially ten additional years” on one charge, and dismissed second charge).

Nonetheless, the defendant argues that he would not have pleaded guilty because his plea counsel would have advised him not to, and that he would have acted on counsel's advice. See Scott, 467 Mass. at 356-357 (plea counsel's recommendation factor for consideration). The argument fails for two reasons. First, the judge did not credit the defendant's testimony that he would have rejected the plea offer, instead finding it “entirely conclusory and unconvincing.” The defendant does not challenge this finding. Second, as the judge stated, plea counsel did not aver that he would have advised the defendant to reject the plea offer and instead to go to trial. Rather, counsel's affidavit states that he would not have advised the defendant “to plead guilty to the charges on January 6, 2009” -- the date of the plea -- and would instead have sought additional concessions during plea negotiations, among other things. We discern no error in the judge's analysis. See Scott, supra at 356 (incorporating reasonable probability analysis from ineffective assistance cases, where defendant must demonstrate that “he would not have pleaded guilty and would have insisted on going to trial” [emphasis added] ).

Order entered December 6, 2018, denying motion for new trial affirmed.

Order entered January 3, 2019, denying motion to reconsider affirmed.

FOOTNOTES

3.   The Legislature has since amended § 32E (c). Subsection 1 now criminalizes trafficking in eighteen to thirty-six grams of heroin. See St. 2012, c. 192, § 25.

4.   Section 32E (c) (3) now carries a mandatory minimum sentence of eight, and a maximum of thirty, years in prison. See St. 2012, c. 192, § 26; St. 2014, c. 165, §§ 134-135.

5.   The positive field test for heroin, if presented at trial with proper foundation, was capable of providing persuasive weight. See Resende, 475 Mass. at 17-18. The defendant cites Commonwealth v. Rodriguez, 92 Mass. App. Ct. 774, 778, n.9 (2018), for the proposition that field tests are unreliable. Rodriguez did not so hold. To the contrary, Rodriguez stated that “field test evidence may not be offered without a demonstration of its validity or reliability under [Commonwealth v. Lanigan, 419 Mass. 15 (1994)].” Rodriguez, supra at 778. On its facts, Rodriguez concluded that the trial judge erred in permitting the Commonwealth to characterize field tests as conclusive evidence of composition “without prior scrutiny under [Lanigan].” Id. at 780.