Summary
identifying that for Petitioner's plea to be valid, he must have entered it "intelligently, knowingly, and voluntarily"
Summary of this case from Bermudez v. RodenOpinion
No. 12–P–1240.
2013-05-24
COMMONWEALTH v. Josue Robles BERMUDEZ.
By the Court (COHEN, SIKORA & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The pro se defendant appeals from the denial of his motion to withdraw his August, 2006, guilty pleas to two counts of trafficking in cocaine, G.L.c. 94C, § 32E( b )(2), and two counts of conspiracy to violate drug laws, G.L. c. 94C, § 40. The defendant argues that he was erroneously told that each offense carried a maximum of fifteen years in prison, instead of twenty, and therefore his pleas were involuntary. We affirm.
At the plea colloquy, the judge stated that the maximum punishment for each of the offenses was fifteen years; in reality, each of the four offenses carried a potential sentence of twenty years. See G.L.c. 94C, §§ 32E( b )(2), 40. Following the Commonwealth's recommendation, the judge stated that the defendant would “have to be willing to accept a sentence of not less than 12 years, no more than 15 years to the state prison.” The defendant acknowledged that he understood. The motion judge concluded that, because the defendant was sentenced to from twelve to fifteen years, as he was advised, the defendant did not establish that a misstatement of the maximum penalty had any bearing on voluntariness. We treat the defendant's motion as one for a new trial pursuant to Mass.R.Crim.P. 30(b), 435 Mass. 1501 (2001), and review for an abuse of discretion or clear error of law. See Commonwealth v. Sherman, 451 Mass. 332, 334 (2008); Commonwealth v. Pingaro, 44 Mass.App.Ct. 41, 47–48 (1997). During the plea colloquy, the judge must inform the defendant “where appropriate, of the maximum possible sentence on the charge.” Mass.R.Crim.P. 12(c)(3)(B), 442 Mass. 1514 (2004). That the judge failed to do so correctly in this instance does not mean, however, that the plea was not entered intelligently, knowingly, and voluntarily, see Commonwealth v. Murphy, 73 Mass.App.Ct. 57, 63–64 (2008), or that the denial of the defendant's motion would “work an injustice,” Commonwealth v.. Rodriguez, 52 Mass.App.Ct. 572, 581 (2001). The judge's misstatement “did not significantly affect the substance of the [rule 12(c)(3) ] requirement.” Commonwealth v. Sherman, supra at 341, quoting from Commonwealth v. Glines, 40 Mass.App.Ct. 95, 99 (1996). Because the defendant's sentence did not exceed the recommended twelve to fifteen years, no injustice results from the denial of his motion. See Commonwealth v. Cavanaugh, 12 Mass.App.Ct. 543, 546 (1981). See also Commonwealth v. Rodriguez, supra at 579 (“[A] defendant who enters into a plea bargain for less than the maximum sentence available under the law cannot be heard to complain, upon being sentenced within the limits of the plea bargain, that he was not advised of the maximum sentence provided by law.”).
Order denying motion to withdraw guilty pleas or for new trial affirmed.