Opinion
21-P-599
06-09-2022
COMMONWEALTH v. RICHARD DIBIASIO.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In February 2020, the defendant, Richard DiBiasio, pleaded guilty in District Court, to stalking, G. L. c. 265, § 43 (a.), criminal harassment, G. L. c. 265, § 43A (a), and two counts of threatening to commit a crime, G. L. c. 275, § 2. In May 2020, the plea judge denied the defendant's motion to withdraw his guilty pleas. Concluding that the plea judge was justified in finding that the defendant's guilty pleas were voluntary, we affirm.
1. Standard of review.
"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. DeJesus, 468 Mass. 174, 178 (2014). When a defendant appeals from the denial of a motion for a new trial, we review "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016), quoting Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015).
2. Voluntariness.
"Due process requires that a plea of guilty be accepted only where 'the contemporaneous record contains an affirmative showing that the defendant's plea was intelligently and voluntarily made." Commonwealth v. Cotto, 471 Mass. 98, 105 (2015), quoting Commonwealth v. Furr, 454 Mass. 101, 106 (2009). "A guilty plea is voluntary so long as it is tendered free from coercion, duress, or improper inducements." Commonwealth v. Wentworth, 482 Mass. 664, 679 (2019), quoting Commonwealth v. Scott, 467 Mass. 336, 345 (2014).
Here, the defendant repeatedly testified under oath that he was pleading guilty voluntarily, and because he was in fact guilty and for "no other reason." He testified that his mental health issues did not prevent him from understanding the proceedings. See Commonwealth v. Goodreau, 442 Mass. 341, 350 (2004), quoting Commonwealth v. Russin, 420 Mass. 309, 317 (1995) (defendant competent to plead guilty where defendant has ability to consult with lawyer and "has a rational as well as factual understanding of the proceedings against him"). This is adequate evidence for the judge to find that the guilty pleas were voluntary. See Commonwealth v. Hiskin, 68 Mass.App.Ct. 633, 640 (2007) .
To this, the defendant posits that his guilty pleas were involuntary because the plea judge "suggested to the defendant that he did not have a viable criminal responsibility defense for trial, and that the trial court might not allow the presentation of that defense." In fact, the court had already ruled that the defendant could present his criminal responsibility defense. During the discussion of the defendant-capped plea, the plea judge appropriately expressed skepticism that the defendant did not intend to bother the victim when, on a recorded call, the defendant threatened to stab any future boyfriend of the victim's in the heart. The plea judge also did not err in telling the defendant that he did not consider the defendant's depression and anxiety as mitigating factors for sentencing because he did not consider them as "prohibit[ing] someone from monitoring their own behavior towards someone else." "A sentencing judge has great discretion within the statutorily prescribed range 'to fashion an appropriate[, ] individualized sentence.'" Commonwealth v. Holness, 93 Mass.App.Ct. 368, 375 (2018), quoting Commonwealth v. Cole, 468 Mass. 294, 302 (2014). Nothing required the plea judge, in determining a sentence, to credit the defendant's criminal responsibility defense. Nor does a judge's preliminary thoughts about the strength of the parties' cases make a guilty plea involuntary. See Commonwealth v. Bowen, 63 Mass.App.Ct. 579, 582 (2005) (judge's statement at lobby conference "that the Commonwealth's case appeared to be strong" not raised as basis for finding guilty plea involuntary).
The defendant's claim that he would have opted for a bench trial absent this statement rings hollow in light of the defendant's sworn statements prior to the plea hearing that he saw no "possibility of him getting a fair trial at the Peabody District Court presided over by any of the judges therein" and "vehemently asserts he will not receive a fair trial in this court."
"[A] plea of guilty induced by a judge's threat to impose more severe punishment upon a defendant who chooses to exercise his constitutional rights" to trial is coercive. Commonwealth v. Damiano, 14 Mass.App.Ct. 615, 618 (1982). Accord Bowen, 63 Mass.App.Ct. at 585 ("That level of coercion in this case would mean that the judge forced a guilty plea by putting the defendant on notice that he could expect more severe punishment because he insisted on exercising his right to a trial by jury"). During the discussion of the defendant-capped plea, the plea judge asked the defendant to explain "why I shouldn't sentence you to two and a half years in jail from and after two and half years." Nothing in this suggested any difference in the sentence after trial; indeed, the discussion concerned the sentence after a guilty plea. Cf. Parreira v. Commonwealth, 462 Mass. 667, 669 (2012) (after presentation of Commonwealth's case, judge stated that sentence after jury conviction would be higher than still-active plea offer); Commonwealth v. Carter, 50 Mass.App.Ct. 902, 904 (2000) ("The judge unequivocally told the defendant that, if he opted to proceed to trial, he would be given a twenty-year sentence if found guilty"). "The judge never threatened the defendant with a harsher sentence if he were to pursue" a trial. Commonwealth v. McCalop, 485 Mass. 790, 803 (2020). Accordingly, the plea judge committed no error of law and acted with his discretion in denying the defendant's motion to withdraw his guilty pleas.
Order denying motion for a new trial affirmed.
The panelists are listed in order of seniority.