COMMONWEALTH v. JENNIFER ANGELO (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On May 13, 2013, the defendant, Jennifer L. Angelo, admitted to sufficient facts to warrant a finding of guilty on a charge of operating a motor vehicle under the influence (OUI), G. L. c. 90, § 24 (1) (a) (1), in the District Court. Following the Supreme Judicial Court's decision in Commonwealth v. Hallinan, 491 Mass. 730 (2023), the defendant filed a motion for a new trial on June 18, 2024. The defendant appeals from the judge's (motion judge) order denying the motion for a new trial. Concluding that the defendant's waiver of counsel at the time of her plea was invalid, we reverse the denial of the defendant's motion for a new trial and remand the case for further proceedings if the Commonwealth wishes to seek a new trial.

Background. On March 18, 2013, the defendant was arraigned on charges of OUI, G. L. c. 90, § 24 (1) (a) (1); negligent operation of a motor vehicle, G. L. c. 90, § 24 (2) (a); and a civil infraction for a marked lanes violation, G. L. c. 89, § 4A. On the date of her arraignment, the defendant signed a waiver of counsel form and proceeded as a self-represented litigant.¹ At a hearing on May 13, 2013, the defendant, representing herself, admitted to sufficient facts to warrant a finding of guilty on the OUI charge.² A judge (plea judge) conducted a plea colloquy and accepted the defendant's tender of plea.

On June 18, 2024, the defendant filed a motion for a new trial arguing that: (1) misconduct by the State police office of alcohol testing tainted her plea, rendering her admission unknowing and involuntary;³ and (2) her plea hearing was defective because she did not validly waive her right to counsel. After hearing argument on the motion, the motion judge denied the defendant's motion in an order dated October 3, 2024.

Discussion. The Commonwealth concedes that, as the defendant argues, a new trial is warranted because the plea judge's colloquy regarding waiver of counsel was inadequate. We agree.

“As a general matter, we review a judge's denial of a defendant's motion for a new trial to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Caldwell, 487 Mass. 370, 374 (2021).

“[W]henever a defendant elects to waive the right to counsel -- whether at arraignment or at a plea hearing -- a trial court judge bears the ‘serious and weighty responsibility’ of ascertaining whether that waiver is made knowingly and intelligently” (citation omitted). Commonwealth v. Barros, 494 Mass. 100, 101 (2024). “Under art. 12 of the Massachusetts Declaration of Rights, a criminal defendant's waiver of the right to counsel must be made knowingly and intelligently, with adequate[ ] aware[ness] of [(1)] the seriousness of the charges, [(2)] the magnitude of [the] undertaking, [(3)] the availability of advisory counsel, and [(4)] the disadvantages of self-representation” (quotation and citation omitted). Id. at 100-101.

On review, we assess the defendant's subjective understanding of their choice to waive their right to counsel and the consequences thereof. See Barros, 494 Mass. at 105. “[A] trial court judge may not forgo ascertaining that a defendant's waiver of counsel is made knowingly and intelligently at any stage of a case -- even if a defendant expresses an intent to enter a plea as opposed to going to trial.” Id. at 108. Where a record demonstrates that “a waiver of counsel was not knowing and intelligent, vacatur of the plea will be required for structural error.” Id. at 113.

Based on our review of the record, we conclude that the plea judge's inquiry of the defendant during the plea colloquy was insufficient to demonstrate that the defendant knowingly and voluntarily waived her right to counsel. See Barros, 494 Mass. at 106 (“We confirm that art. 12 always requires this inquiry to ensure that a defendant's waiver of counsel is knowing and intelligent, at any stage of a case”). The plea judge asked the defendant only two questions related to the defendant's waiver of counsel:

Q.: “Okay. You represented yourself in this matter, you're satisfied you were able to do that, or do you need time to talk to somebody?”

A.: “I'm satisfied.”

Q.: “You're satisfied you were able to represent yourself?”

A.: “Yes.”

The plea judge never informed the defendant that she had the right to advisory counsel, and he failed to discuss the seriousness of the charges against her or the magnitude of the undertaking of self-representation and its dangers and disadvantages. See Barros, 494 Mass. at 101 (“the inquiry required will depend on the individual defendant and the circumstances of the case, but the judge should ascertain that each element of the standard for a knowing and intelligent waiver is met”). Because the plea judge failed to make a proper inquiry to ascertain that the defendant knowingly and intelligently waived her right to counsel, we conclude that her waiver of counsel was invalid.

The order denying the defendant's motion for a new trial is reversed. The conviction is vacated, and the defendant is to be permitted to withdraw her plea. The case is remanded to the District Court for further proceedings, including a new trial should the Commonwealth choose to pursue one.

So ordered.

FOOTNOTES

1.   The audio recording of the arraignment is unavailable. Because we conclude below that the plea colloquy was defective and the defendant's waiver of counsel was invalid at the time she pleaded, the absence of a recording or transcript of the arraignment is not material to our determination. See Commonwealth v. Barros, 494 Mass. 100, 108 (2024) (defendant's waiver of counsel must be valid at any stage of case).

2.   The Commonwealth dismissed the negligent operation of a motor vehicle charge; the defendant was found responsible on the civil infraction, and it was placed on file.

3.   Because we conclude a new trial is warranted based on the defendant's invalid waiver of counsel, we need not and do not reach this argument.