COMMONWEALTH v. DELGADO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On October 3, 2000, the defendant pleaded guilty to four charges of rape of a child by force, as well as four charges of indecent assault and battery on a child. On June 2, 2011, following multiple probation violations, the defendant was sentenced to not less than four, but no more than twenty years in prison. He subsequently filed a motion to vacate his guilty pleas, based upon the plea judge's failure to strictly adhere to the procedures set forth in Mass. R. Crim. P. 12 (c) (3), as appearing in 470 Mass. 1501 (2015). That motion was denied, and the defendant appeals. We affirm.

1. Standard of review. A postsentence 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). See Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992). We review the denial of such a motion under an abuse of discretion standard. See Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015). “Under the abuse of discretion standard, the issue is whether the judge's decision resulted from a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives” (quotation and citation omitted). Id.

2. Discussion. The defendant claims that his motion for a new trial was wrongfully denied where his plea colloquy failed to strictly comply with Mass. R. Crim. P. 12 (c) (3). During a defendant's plea colloquy, the judge must inform the defendant of the maximum possible sentence, as well as any mandatory minimum sentence, on the charges presented. Mass. R. Crim. P. 12 (c) (3). Furthermore, where a defendant pleads guilty to a term of straight probation, it is appropriate to advise the defendant of the maximum and minimum sentence available for violation of those probation terms. See Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 579-580 (2001).

However, a defendant's plea may nonetheless be entered into knowingly and voluntarily despite noncompliance with Mass. R. Crim. P. 12. See Rodriguez, 52 Mass. App. Ct. at 580-581. Ultimately, “[e]ach case must be analyzed individually to determine whether compliance with [Mass. R. Crim. P. 12] would have made a difference in the decision of the defendant to plead guilty.” Id. at 580. In such a case, it is incumbent upon the defendant to provide not only “plausible evidence” that he would have preferred to go to trial, but also a credible reason as to why withdrawal of the plea outweighs the risk of prejudice to the Commonwealth.³ Id. at 581.

First, the defendant claims that the motion judge abused her discretion in finding it “implausible” that the defendant would not have pleaded guilty, had he known of the possibility of a long prison sentence in the wake of multiple probation violations. We disagree.

Here, after the guilty plea was accepted, but before he was sentenced, the plea judge informed the defendant “in open court and on the record that he could face consecutive life sentences if he violated his probation.” The motion judge found that “[i]f this information would really have made a difference in [the defendant's] decision to plead guilty,” he could have tried to withdraw his plea during sentencing, or shortly thereafter. However, instead, the defendant waited seventeen years before filing a motion to vacate his guilty pleas. In fact, his first ever attempt to withdraw, or even challenge, his guilty pleas came only after he was sentenced to prison for his second probation violation.

Given the defendant's substantial delay in filing his motion to withdraw his guilty pleas, coupled with the plea judge's clear warning to the defendant during sentencing regarding a potential life sentence for violation of probation,⁴ the motion judge did not abuse her discretion in finding it implausible that compliance with Mass. R. Crim. P. 12 (c) would have made a difference in the defendant's decision to plead guilty. See Commonwealth v. Furr, 454 Mass. 101, 109 (2009) (judge entitled to disbelieve defendant's claim that he did not understand charges against him where it took eight years to file motion to withdraw guilty plea).

Next, while the defendant acknowledges the plea judge's warning during sentencing, he nonetheless contends that the failure to provide such notice during the plea colloquy itself renders his guilty plea improper as matter of law. He argues that providing him with such a warning at any time other than during the plea colloquy is inadequate. Without strict compliance with Mass. R. Crim. P. 12 (c) (3) during the plea colloquy, the defendant claims he was unable to acknowledge or understand the possibility of facing consecutive life sentences for violation of his probation.⁵ We disagree.

“[W]hile compliance with the procedures set out in [Mass. R. Crim. P. 12 (c)] is mandatory, adherence to or departure from them is but one factor to be considered in resolving whether a plea was knowingly and voluntarily made” (quotation and citation omitted). Rodriguez, 52 Mass. App. Ct. at 580. The ultimate question is not whether there was strict compliance with Mass. R. Crim. P. 12 (c), but rather whether such compliance would have made a difference in the defendant's decision to plead guilty. See Rodriguez, supra. As explained above, because we are satisfied with the motion judge's determination that strict compliance with Mass. R. Crim. P. 12 (c) would not have made a difference in the defendant's decision to plead guilty, the motion judge did not abuse her discretion in failing to grant the motion solely because of the plea judge's slight departure from the procedures set forth in Mass. R. Crim. P. 12 (c) (3).

Finally, the defendant claims that the motion judge abused her discretion in finding his claim of factual innocence, as well as his claim of lying during the plea colloquy, to lack credibility. However, it is well settled that it is the motion judge who is to be the “final arbiter on matters of credibility” (citation omitted). Commonwealth v. Scott, 467 Mass. 336, 344 (2014).

Here, the motion judge found the defendant's testimony at the motion hearing to lack credibility, in light of the “detailed summary” of evidence provided by the Commonwealth at the plea hearing. In particular, the motion judge found the defendant's testimony not credible in light of his own sworn statements at the plea hearing, which acknowledged his guilt.⁶ Because his own sworn statements at the plea hearing are to be given substantial weight, we are satisfied that the motion judge did not abuse her discretion in her credibility findings regarding the defendant's claim of factual innocence. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 640 (2007) (“defendant's sworn statements must not be discarded on the later assertion that he had his fingers crossed”).

Order denying motion to vacate guilty pleas and for new trial affirmed.

FOOTNOTES

3.   The defendant claims in his brief that his desire to avoid a lengthy prison sentence is a special circumstance that warrants the withdrawal of his guilty plea. However, he offers no case law to support such a proposition, nor do we accept that the mere desire to avoid a lengthy prison sentence is a “special circumstance” that is unique to the defendant's case. Cf. Commonwealth v. Lavrinenko, 473 Mass. 42, 43 (2015) (defendant's status as refugee or asylee constitutes special circumstance in decision to plead guilty).

4.   On the very same day the defendant pleaded guilty, he was sentenced. During sentencing, the judge warned him that he could potentially receive consecutive life sentences for violation of his probation. The judge stated that such a penalty was “a terrible sword hanging over [the defendant's] head, and deservedly so, for the next ten years after he is released from prison.”

5.   On appeal, the defendant contends that during sentencing, he was simply “going with the motions.”

6.   Furthermore, the motion judge discredited the defendant's claims based upon the statements of the two victims, who at different times, disclosed in great detail the numerous, violent sexual assaults that took place.