Opinion
10-P-2042
02-10-2012
COMMONWEALTH v. JONATHAN LARA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
One month after tendering guilty pleas to one count of distributing cocaine and one count of possessing cocaine with the intent to distribute, the defendant moved for a new trial on the ground that the plea colloquy was constitutionally deficient. We agree and reverse the denial of the defendant's motion.
'A motion for a new trial is addressed to the sound discretion of the trial judge, and the judge's disposition of the motion will not be reversed until it is manifestly unjust, or unless the [proceeding] was infected with prejudicial constitutional error.' Commonwealth v. Russin, 420 Mass. 309, 318 (1995). Prejudicial constitutional error occurs when 'a defendant is unaware of the essential elements of the crime to which he is pleading, and does not admit to facts sufficient to establish the existence of those elements.' Commonwealth v. Sullivan, 385 Mass. 497, 504 (1982). 'A defendant's plea is not entered into 'freely and understandingly' unless he comprehends the nature of the crime to which he is pleading guilty.' Commonwealth v. Nikas, 431 Mass. 453, 456- 457 (2000). 'There must be an explanation by the judge or defense counsel of the elements of the crimes charged or an admission by the defendant to the facts constituting those crimes. . . . This requirement can be satisfied in one of several ways: (1) by the judge explaining to the defendant the elements of the crime; (2) by counsel's representation that [he] has explained to the defendant the elements he admits by his plea; or, (3) by the defendant's stated admission to facts recited during the colloquy which constitute the unexplained elements.' Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 353 (2010), quoting from Commonwealth v. Correa, 43 Mass. App. Ct. 714, 717 (1997).
Here, the Commonwealth does not dispute that during the colloquy (1) the judge did not explain the elements of the crimes; (2) counsel did not represent that he had explained the elements to his client; and (3) the judge did not ask the defendant whether he admitted to the facts recited by the prosecutor, nor did the defendant admit to those facts. The Commonwealth argues, however, that the constitutional requirement of intelligence is satisfied by the written tender (of plea and waiver of rights) form signed by the defendant and his counsel, combined with the facts that the judge read the charges to the defendant and that the elements of the crimes are self-explanatory or, at least, inferable from the prosecutor's recitation of the facts.
The written tender form standing alone is not enough to satisfy the constitutional requirement, but it is a factor that may be considered along with others. Commonwealth v. Colon, 439 Mass. 519, 529 n.14 (2003). The fact that the judge read the charges to the defendant at the outset of the colloquy adds little or nothing in this case because the judge did not state the elements of the crimes. He advised the defendant only of the names of the crimes, together with their statutory references. And, although the recitation of facts by the prosecutor embodied many of the elements of the crime, it did not encompass them all, nor was the recitation even agreed to by the defendant personally. See id. at 528; Commonwealth v. Tavernier, 76 Mass. App. Ct. at 353, 355, 360-361, 362-363. For example, the prosecutor stated only that 'something' was exchanged between the defendant and the putative purchaser. This was not sufficient to advise the defendant that the Commonwealth bore the burden of proving beyond a reasonable doubt that the substance exchanged was in fact cocaine.
For these reasons, the order denying the defendant's motion for a new trial is reversed and a new order shall enter allowing the motion.
So ordered.
By the Court (Kafker, Fecteau & Wolohojian, JJ.),