COMMONWEALTH v. NUNEZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On April 4, 2019, pursuant to a plea agreement reached on the second day of trial, the defendant pleaded guilty to numerous offenses stemming from two incidents that occurred on August 19, 2015. In the first incident, the defendant punched his former girlfriend, Omara Quintana, in the face. In the second, the defendant shot at Quintana's car and seriously wounded a passenger, Brian Rosato.²

The prosecutor described the terms of the plea agreement at the change of plea hearing as follows. The Commonwealth would dismiss the charge of carrying a loaded firearm without a license (count 6) and so much of the indictment as charged the use of a gun in four counts of armed assault with intent to murder (counts 1-4), and the defendant would plead guilty to the remaining counts of assault and battery causing serious bodily injury (count 5), carrying a firearm without a license (count 7), possession of ammunition without an FID card (count 8), and assault and battery (count 9). The parties jointly recommended a concurrent sentence of three to five years in State prison on counts 1 through 5 and count 9, and two years in the house of correction on counts 7 and 8, to be served concurrently with each other and with the State prison sentences, with nine months deemed served.

The judge then conducted a thorough colloquy with the defendant pursuant to Mass. R. Crim. P. 12, as amended, 482 Mass. 1499 (2019). At the conclusion of the hearing, the judge informed the defendant that because he was pleading guilty in accordance with a plea agreement, if she exceeded the agreed-upon sentence, the defendant could withdraw the plea.³ The judge accepted the defendant's plea, but did not impose a sentence at that time. Instead, as trial counsel had requested, the judge reduced the defendant's bail so that he could be released from custody and put his affairs in order. Sentencing was postponed until May 3, 2019.⁴ , ⁵ The judge told the defendant that she would impose the recommended sentence unless the defendant was arrested before the sentencing date, or if he failed to appear in court on that day.⁶

As it turned out, within days of pleading guilty, the defendant was charged with a number of offenses stemming from a home invasion. The allegations were that, while masked and armed, the defendant entered an apartment to steal drugs and money.⁷ Consequently, when the parties appeared at the sentencing hearing, the Commonwealth took the position that it no longer had to abide by the terms of the plea agreement and recommended that a ten- to twelve-year sentence be imposed. Defense counsel recommended that the prior agreed-upon recommendation of three to five years be imposed and informed the judge that if the sentence were to exceed that recommendation, the defendant would withdraw his plea. The judge imposed a sentence of seven to nine years in State prison and two years in the house of correction to be served concurrently, with nine months deemed served.⁸

On November 18, 2019, the defendant filed a motion to reconsider and requested that he be resentenced in accordance with the plea agreement or, in the alternative, that he be permitted to withdraw his plea. The defendant claimed that his plea was not knowing and voluntary because he was not informed that, if he should be arrested prior to the sentencing hearing and the judge should then decline to follow the plea agreement, he would not be given the opportunity to withdraw his guilty plea. The motion was denied. The defendant's appeal from the denial of his motion to vacate his plea and his motion to reconsider were consolidated.

Discussion. We review the denial of a motion to withdraw a guilty plea to determine there has been an abuse of discretion or other significant error of law. See Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). Where, as here, “a guilty plea is tendered in return for, and contingent on, a sentence recommendation, ‘the judge shall inform the defendant that [s]he will not impose a sentence that exceeds the terms of the recommendation without first giving the defendant the right to withdraw his plea’ ” (citation omitted). Commonwealth v. Goodwin, 458 Mass. 11, 20 (2010).⁹ It is undisputed that the judge informed the defendant of his right to withdraw his plea, but she did not permit him to do so after she imposed a sentence that exceeded the agreed-upon recommendation. Consequently, as the Commonwealth concedes, the judge improperly departed from the requirements of Mass. R. Crim. P. 12.¹⁰

Although we acknowledge that “deviations from the rule do not automatically entitle a defendant to withdraw his plea,” the defendant is entitled to do so here. Commonwealth v. Sylvia, 89 Mass. App. Ct. 279, 286 (2016). “The real issue in cases like the present one is whether a waiver was knowingly and voluntarily made” (citation omitted). Id. It is clear that the defendant's plea was contingent on an agreement with the prosecutor that he would receive a three- to five-year sentence, and that the defendant entered into that agreement having been informed that he would have the opportunity to withdraw his guilty plea if the judge exceeded the recommendation. Thus, in the circumstances presented, the defendant is entitled to withdraw his plea of guilty.¹¹

The order denying the defendant's motion to withdraw his guilty plea is vacated, and a new order shall enter allowing the motion to withdraw the plea.

So ordered.

Vacated.

FOOTNOTES

2.   Quintana's three year old daughter also was in the car and Rosato was shielding her with his body when a bullet struck him and pierced his small intestine, liver, and pancreas.

3.   The judge stated, “[T]he agreed recommendation was described to me at sidebar․ [W]hile I'm free to reject the recommendation, if I did that, if I did not want to accept it then you could withdraw or take back your guilty plea.”

4.   The original date was April 25, 2019.

5.   The defendant was released on $45,000 bail with conditions.

6.   The judge said,“I would impose exactly what was stated here in open court, the agreed recommendation between your lawyer and the Commonwealth, unless you get arrested between now and April 25th, or you don't show up on April 25th․ If you do show up and there's no arrest, then I'll impose the sentence that's agreed to.”The docket reflects the following: “Oral motion to stay imposition of sentence until April 25, 2019 at 9:00 a.m. is ALLOWED, and court will honor sentence of 3-5 years state prison with 2 years HOC concurrent, if defendant appears on April 25, 2019 at 9:00 a.m. and is not arrested between today and then.”

7.   The factual basis for the charges was described by the prosecutor as follows:“[The defendant] and a friend of his went to an apartment that his associate was familiar with [and h]ad lived at in the past. And they went in with ski masks armed with a Maglite, the heavy flashlight, and a shotgun. They were there to take drugs and proceeds of drug sales from the occupants of the apartment. They recognized Mr. Nunez, his associate as their former roommate and the jig was up. They were attacked and hit with the butt end of the shotgun and left in bloody pools when the Brookline police officers responded.”The defendant, who was wearing a GPS bracelet, was tracked going to and from the apartment. The shotgun allegedly used in the attack was subsequently recovered from the defendant's home during the execution of a search warrant.

8.   About one month later, on June 19, 2019, the judge sua sponte revised the defendant's sentence on count 5 to a four to five year concurrent term to State prison after the Department of Correction requested a revised mittimus from the court.

9.   Rule 12 (c) (6) provides: “[I]f the judge decides to impose a sentence that will exceed ․ the parties' request for disposition under Rule 12 (c) (4) (B), the judge shall, on the record, advise the defendant of that intent and shall afford the defendant the opportunity to withdraw the plea or admission.”

10.   The Commonwealth's concession does not relieve us of our appellate function of determining whether error was committed. See Commonwealth v. Smith, 60 Mass. App. Ct. 204, 206 n.2 (2003); Commonwealth v. McClary, 33 Mass. App. Ct. 678, 686 n.6 (1992).

11.   In reaching our conclusion, we do not mean to imply that the defendant is entitled to the plea deal he bargained for. To the contrary, he is entitled to a new trial and no more.