COMMONWEALTH v. OTERO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Juan Otero, pleaded guilty in 2006 to distribution of heroin, possession of heroin with intent to distribute, and possession of cocaine with intent to distribute.² The drugs at issue were tested at the State Police Laboratory in Amherst, during the time that Sonja Farak was employed as an analyst there. The defendant argues that the “global” remedy prescribed by the Supreme Judicial Court in Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700 (2018) (CPCS), for Farak's malfeasance did not address adequately the Commonwealth's failure to investigate the extent of Farak's misconduct and any resulting exculpatory evidence; further, he contends, since the time to investigate has passed, dismissal of the defendant's 2006 convictions is appropriate. We disagree and affirm the order denying his motion to vacate the convictions.

1. Background. On February 8, 2006, officers from the Springfield Police Department observed the defendant conduct a narcotics transaction with an individual named Callahan. After the transaction, the officers stopped Callahan, who admitted to purchasing narcotics from the defendant; the officers recovered five zip lock baggiess containing what they believed contained heroin from Callahan. The officers then approached the defendant and observed him drop glassine bags containing four off-white items the officers believed to be crack cocaine. The officers also observed ten small blue zip lock baggies containing white powder consistent with the heroin recovered from Callahan. The officers sent all of the recovered baggies to the State Laboratory Institute in Amherst at the campus of the University of Massachusetts (Amherst lab) for testing.

On March 3, 2006, Amherst lab supervisor James Henchett tested the substances recovered. The results confirmed the substances to be heroin and crack cocaine. On July 12, 2006, the defendant entered pleas to so much of counts one through three as alleged first offenses. The Commonwealth filed a nolle prosequi as to count four, furnishing a false name to law enforcement, on the same date. The plea judge accepted the defendant's plea after a full colloquy and sentenced the defendant on each count to concurrent sentences of not less than four years and not more than four years and one day in State prison (2006 convictions). In 2012, the defendant also pleaded guilty to two charges of possession of cocaine with intent to distribute, one charge of possession of a Class C substance with intent to distribute, and two charges of possession of a Class E substance with intent to distribute (2012 convictions).³

On January 4, 2016, the defendant filed a “Motion to Vacate Convictions and for the Sanction of Dismissal,” pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), arguing that Farak's malfeasance at the Amherst lab had impaired the integrity of the Commonwealth's evidence upon which both convictions rested. That motion was denied, and the defendant appealed.

On October 11, 2018, the Supreme Judicial Court decided CPCS, 480 Mass. at 700; in that opinion, the court fashioned a remedy for those affected by Farak's misconduct and the Commonwealth's subsequent failure to investigate and disclose exculpatory evidence in its possession. As a result, the defendant's 2012 convictions were vacated and that case was dismissed.⁴

2. Discussion. “A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass. R. Crim. P. 30 (b).” Commonwealth v. Furr, 454 Mass. 101, 106 (2009). The disposition of such a motion is “committed to the sound discretion of the judge,” and “the judge's findings of fact are to be accepted if supported by the evidence.” Commonwealth v. Scott, 467 Mass. 336, 344 (2014).

Due process requires that a plea of guilty be accepted only where “the contemporaneous record contains an affirmative showing that the defendant's plea was intelligently and voluntarily made.” Furr, 454 Mass. at 106. “A guilty plea is intelligent if it is tendered with knowledge of the elements of the charges against the defendant and the procedural protections waived by entry of a guilty plea.” Scott, 467 Mass. at 345. “A guilty plea is voluntary so long as it is tendered free from coercion, duress, or improper inducements.” Id. This defendant does not challenge the procedures surrounding the plea itself.

A guilty plea “also may be vacated as involuntary because of external circumstances or information that later comes to light” (quotation omitted). Commonwealth v. Cotto, 471 Mass. 97, 105 (2015). When a defendant seeks to vacate a guilty plea as a result of governmental misconduct, the Supreme Judicial Court has articulated a two-prong test. See Scott, 467 Mass. at 346-358. Under the first prong, a defendant must show egregious misconduct by the government that preceded the entry of the defendant's guilty plea and occurred in his own case. Id. at 351. See Cotto, 471 Mass. at 106, quoting Scott, 467 Mass. at 352 (where egregious governmental misconduct is shown to be a “lapse of systematic magnitude in the criminal justice system,” conclusive presumption arises that egregious governmental misconduct occurred in defendant's case). The second prong requires the defendant to show that “the misconduct influenced his decision to plead guilty or, put another way, that it was material to that choice” (quotation omitted). Scott, supra at 346.

Here, the defendant argues only that the Commonwealth's failure to investigate thoroughly “the extent to which the integrity of its evidence had been impaired, and to learn of and disclose the extent of that impairment” was a “[c]onstitutional duty” that the Commonwealth breached. He contends that nothing that has occurred to date has remedied that breach and that “[d]ismissal has become the only remedy.”

We are not persuaded. The court in CPCS concluded that a remedy that involved vacating and dismissing with prejudice all convictions based on drug samples tested at the Amherst lab during Farak's tenure “is not a sufficiently tailored remedy.” 480 Mass. at 726. Instead, the court concluded that the class of “Farak defendants” entitled to relief includes not only cases “already dismissed where Farak signed the drug certificate, [but also] all convictions based on evidence that was tested at the Amherst lab on or after January 1, 2009, regardless of the chemist who signed the drug certificate, and all methamphetamine convictions where the drugs were tested during Farak's tenure at the Amherst lab.” Id. at 729. Those cases “must be vacated and dismissed.” Id.

The defendant's convictions at issue were in 2006 and his arguments, however framed, rest only on the fact that the drugs seized in his case were tested at the Amherst lab while Farak was employed there. On these facts, as to the 2006 convictions, he is not a “Farak defendant” as defined in CPCS and therefore is not entitled to the relief outlined therein. Further, we decline his invitation to extend relief beyond the “global remedy” outlined by the Supreme Judicial Court.

Order entered September 15, 2017, denying motion to vacate convictions and for sanction of dismissal affirmed.

FOOTNOTES

2.   The defendant had been indicted for subsequent offenses on each count; the pleas were to lesser included offenses.

3.   Here, too, the pleas were to lesser included offenses from the original indictments for committing these crimes as “subsequent offense[s].”

4.   This court then granted the defendant leave to file a substitute brief, and the defendant did so.