COMMONWEALTH v. RISE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Antoine Rise, pleaded guilty to assault by means of a dangerous weapon, in violation of G. L. c. 265, § 15B. Approximately eighteen years later, he moved for a new trial, seeking to withdraw his plea. A different judge denied the motion, and the defendant appealed, arguing that there was no factual basis for the conviction. We affirm.

Background. On June 19, 2000, the defendant was charged in the Dorchester District Court with assault by means of a dangerous weapon, a bottle, threatening to commit a crime, and conspiracy.² On October 12, 2000, he pleaded guilty to the assault by means of a dangerous weapon charge; the threats and conspiracy charges were dismissed at the request of the Commonwealth. The Commonwealth had offered a sentencing recommendation of one year committed in a house of correction. The judge instead accepted the defendant's offer to plead guilty to only one charge in exchange for a split sentence of one year in a house of correction, with ninety days to serve and the balance suspended for a probationary period of two years. The committed portion of the sentence was imposed from and after a sentence the defendant was then serving. The conditions for the probation portion of the sentence included youthful offender terms and a stay-away order.³

On April 12, 2018, nearly eighteen years later, the defendant filed a motion for a new trial, seeking to withdraw his guilty plea. In his motion, he alleged that the plea judge accepted his guilty plea with insufficient facts to find that the defendant either took an overt step towards accomplishing an intended battery or engaged in conduct that a reasonable person would find to be a threatened use of physical force, or that he did these things by means of a dangerous weapon.

At the motion hearing, the defendant proffered the tender of plea form from the court record, a so-called “green sheet”; he argued that the judge's failure to sign § VI, certifying that he found a sufficient factual basis for the plea, “contradicts or rebuts the presumption of regularity.” On July 23, 2018, after taking the matter under advisement, the motion judge, who was not the judge who had taken the plea, denied the motion without comment. The defendant appeals from that denial, arguing now that the police report in the record provides an insufficient factual basis to support the plea.

Discussion. “A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).” Commonwealth v. Furr, 454 Mass. 101, 106 (2009). “When, as here, the motion judge did not preside [at the plea hearing], ․ we regard ourselves in as good a position as the motion judge to assess the [plea] record.” Commonwealth v. Petetabella, 459 Mass. 177, 181 (2011), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

As an initial matter, we note that the presumption of regularity applies; the record of the defendant's plea hearing was destroyed pursuant to court rules, and the delay in bringing the appeal is directly attributable to the defendant. See Commonwealth v. Cartagena, 466 Mass. 1021, 1022 (2013); Commonwealth v. Lopez, 426 Mass. 657, 661-662 (1998). In these circumstances, “if the challenge is to advance at all, [it] must be accompanied by sufficient credible and reliable evidence to rebut a presumption that the prior conviction was valid.” Lopez, supra at 665. Overcoming the presumption requires proof “above and beyond ․ reliance upon the mere nonexistence of a transcript of the plea proceedings.” Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 50 (1997).

The defendant argues that the police report contained in the record presents a credible indicator that the judge accepted the plea with an insufficient factual basis for the crime.⁴ We disagree. In the first place, the police report, in fact, makes a case for the charge of assault by means of a dangerous weapon. The report apparently was authored by the victim, a Boston police officer. In it, he described stopping on the street in the Dorchester section of Boston to speak with family members, and then beginning to drive away slowly. As he did so, a man, later identified as Mike Hill, approached him “while brandishing a large knife with the blade out. [Hill] yelled out several times, ‘Who the f ․ you talking to?’ ” The officer did not know Hill or understand why he was speaking to him. Hill then began to threaten a man and a woman who were walking nearby. At that point, the officer “noticed a gang of black males with liquor bottles call to” Hill. The defendant was a member of that group and, after the officer watched Hill interact with the man and the woman, the defendant approached the officer's vehicle “on a bike and holding a bottle and began threatening [the officer,] stating ‘you're gonna get hurt for looking at people’ several times. At this point, the rest of the gang came forward toward [the officer] and began surrounding [his] vehicle while shouting threats and insults.” The officer called for backup assistance and later identified the defendant, who was arrested after a struggle.

We are satisfied that, even if the police report contained the only facts offered to the judge at the time of the plea, the evidence was sufficient to permit the judge to accept the plea. As the Commonwealth correctly argues, the defendant's approach to the police officer, while holding the bottle, in the context of an explicit threat to harm him, sufficed to provide a factual basis for the plea. See Commonwealth v. Buttimer, 482 Mass. 754, 768 (2019), quoting Commonwealth v. Tarrant, 367 Mass. 411, 415 (1975) (“[I]n assault by means of a dangerous weapon, whether the weapon is actually used to inflict harm is largely irrelevant. Rather, as we have stated, the relevant point is the ‘objectively menacing conduct of the defendant ․ [producing] the fear of harm which it was intended to produce, with the same consequential tendency to provoke a breach of the peace’ ”); J.R. Nolan & L.J. Sartorio, Criminal Law § 324 (3d ed. 2001) (“The question is whether the object has the apparent ability to inflict harm if used as threatened, the secret intent of the defendant being immaterial”). See also Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015) (“[A] judge accepting a guilty plea is not required to determine whether the defendant is or is not guilty of the offense charged. ․ Rather, 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” [quotations and citations omitted] ).

Further, on this record, we cannot say that this police report was the only evidence that the judge considered in 2000. The officer might well have appeared to supplement his report, as the case was scheduled for a jury trial on the day of the plea. The defendant has not submitted an affidavit from counsel, or an explanation for why not; nor has he provided even his own affidavit about what the judge heard at the time of the plea. Because it was the defendant's burden to produce evidence to overcome the presumption of regularity, we cannot say that the factual basis for the plea was insufficient. See Commonwealth v. Del Verde, 398 Mass. 288, 300 (1986), citing North Carolina v. Alford, 400 U.S. 25 (1970) (defendant's admission sufficient on its own to pass constitutional muster).

“Although rule 30 (b) allows for a new trial at any time, relief is limited to cases where it appears that justice may not have been done. ․ This strict standard for postconviction motions promotes judicial efficiency and finality by discouraging a defendant from entering a guilty plea to test the weight of potential punishment, ․ only to seek to withdraw the plea later when adverse consequences appear, especially consequences not even contemplated at the time of the plea” (quotations and citations omitted). Lopez, 426 Mass. at 662-663. On this record, we see no error of law or other abuse of discretion in the denial of the defendant's motion for a new trial.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   The docket sheet indicates that counsel was appointed at arraignment.

3.   The defendant later was incarcerated on the suspended portion after twice violating the terms of his probation.

4.   Since the police report was contained in the record, and the defendant presents no extraneous evidence on appeal, we review the argument de novo. See Commonwealth v. Moffat, 478 Mass. 292, 298-299 (2017), and cases cited.