Opinion
15-P-4
02-01-2016
COMMONWEALTH v. BRIAN J. MICHAELS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Following a bench trial in the District Court, the defendant, Brian J. Michaels, was convicted of operating a motor vehicle while under the influence of intoxicating liquor. Following the trial, the defendant admitted to sufficient facts on a charge of negligent operation of a motor vehicle, and the judge entered a disposition of continued without a finding (CWOF) on that charge. On appeal, the defendant claims that the CWOF entered in error because no plea colloquy occurred, and that the jury waiver colloquy was inadequate. We vacate in part and affirm in part.
The defendant was found not responsible for operating a motor vehicle the wrong way on a one-way street.
1. Plea colloquy. Prior to trial, the defendant indicated his intent to admit to sufficient facts for a finding of guilt on the charge of negligent operation of a motor vehicle. The parties and the judge agreed that it would be preferable if the plea colloquy took place at the conclusion of the trial. The record reflects that a plea colloquy never occurred. Notwithstanding, the judge found sufficient facts for a finding of guilt and entered a disposition of CWOF. "A defendant must be informed on the record of the three constitutional rights that are waived by a guilty plea: the right to trial by jury; the right to confront one's accusers; and the privilege against self-incrimination." Commonwealth v. Lopez, 447 Mass. 625, 628 (2006), citing Boykin v. Alabama, 395 U.S. 238, 243 (1969). The Commonwealth concedes that the inadvertent failure to conduct a colloquy constitutes error. We agree and vacate the CWOF disposition entered on the charge of negligent operation of a motor vehicle.
2. Jury waiver colloquy. The defendant claims the jury waiver colloquy on the charge of operating under the influence was deficient because the judge failed: (1) to tell the defendant that he had a constitutional right to a jury trial; (2) to explain the difference between a bench trial and a jury trial; and (3) to explain the defendant's ability to participate in jury selection. In support of his claims, the defendant relies on Ciummei v. Commonwealth, 378 Mass. 504, 509-510 (1979). However, there is no mandated form to which a jury waiver colloquy must adhere. See Commonwealth v. Schofield, 391 Mass. 772, 775 (1984), quoting from Ciummei v. Commonwealth, supra at 509 (there is no "'rigid pattern' of factual determinations which a judge must make before concluding a defendant's waiver of the right to trial by jury [is] voluntary and intelligent"); Commonwealth v. Abreu, 391 Mass. 777, 779-780 (1984). While not an exemplar of a jury waiver colloquy, the record here is comparable to others that have passed muster. In addition to the colloquy itself, the defendant and his attorney signed a waiver of jury trial form and submitted it to the court prior to the colloquy. See Commonwealth v. Hernandez, 42 Mass. App. Ct. 780, 785 (1997). Considered collectively, the colloquy and the signed waiver form establish that the defendant voluntarily and intelligently waived his right to a jury trial. See Commonwealth v. Hardy, 427 Mass. 379, 381-383 (1998). Accordingly, there was no error.
The facts of Abreu are distinguishable from those here. In that case, the judge asked a single question in connection with the jury waiver colloquy. Commonwealth v. Abreu, supra at 779.
For an example of how to conduct a thorough jury waiver colloquy see Cypher, Criminal Practice and Procedure § 31.14 (4th ed. 2014).
3. Conclusion. On the charge of negligent operation of a motor vehicle, the disposition is vacated, and the defendant's admission to sufficient facts is set aside. The defendant's conviction of operating a motor vehicle while under the influence of intoxicating liquor is affirmed.
So ordered.
By the Court (Kafker, C.J., Cohen & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 1, 2016.