Opinion
No. 15–P–1268.
10-24-2016
COMMONWEALTH v. Charles PHILLIPS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion to withdraw his guilty plea to a charge of unarmed robbery. He claims that the judge who accepted his guilty plea had no basis to find that he possessed the required intent to permanently deprive the victim of property. We affirm.
Background. The defendant was indicted on charges of armed robbery, assault by means of a dangerous weapon, and several firearms-related charges arising out of an incident that occurred on June 24, 2008, in which he and Frank Jenkins robbed a victim at gunpoint. On January 27, 2009, he pleaded guilty to the lesser-included offense of unarmed robbery and to the assault charge . The plea judge sentenced him to concurrent two-year terms of probation. On November 16, 2011, a second judge found the defendant in violation of the terms of probation and imposed a two and one-half year house of correction sentence on the assault charge, with one year of probation, on and after his committed sentence, with respect to the unarmed robbery charge.
The Commonwealth agreed to dismiss the other charges.
On April 9, 2015, over six years after his guilty pleas, the defendant moved to withdraw his guilty plea to the unarmed robbery charge. After a nonevidentiary hearing, the plea judge denied the motion.
Discussion. We review the plea judge's denial of the defendant's new trial motion for error of law or abuse of discretion. See Commonwealth v. Almonte, 84 Mass.App.Ct. 735, 737–738 (2014). Before accepting a guilty plea, the judge must “be satisfied that there is an adequate factual basis for the charge.” Mass.R.Crim.P. 12(c)(5)(A), as appearing in 442 Mass. 1511 (2004). The facts need not show the defendant's guilt beyond a reasonable doubt; “a judge accepting a guilty plea ‘is not required to determine whether the defendant is or is not guilty of the offense charged.’ “ Commonwealth v. Armstrong, 88 Mass.App.Ct. 756, 758 (2015), quoting from Commonwealth v. Jenner, 24 Mass.App.Ct. 763, 773 (1987). To be satisfied as to the factual basis for a guilty plea, “a plea judge ‘need determine only whether the evidence which he had heard, plus any information he has obtained in the plea hearing, is sufficient, when considered with reasonable inferences which may be drawn therefrom, to support the charge to which the defendant is offering a plea of guilty.’ “ Armstrong, supra, quoting from Jenner, supra.
Rule 12 was amended in 2015; we apply the version of the rule in effect at the time of the defendant's guilty plea. Although the amendments slightly changed the wording of the rule with respect to the judge's finding of a factual basis, they were not intended to change the substance of the rule in this regard. See Reporter's Notes to Rule 12(c)(5), Massachusetts Rules of Court, Rules of Criminal Procedure, at 179 (Thomson Reuters 2016).
“Robbery is ‘[t]he taking and carrying away of personal property of another from his person and against his will, by force and violence, or by assault and putting in fear, with intent to steal.’ “ Commonwealth v. Stewart, 460 Mass. 817, 821 (2011), quoting from Commonwealth v. Novicki, 324 Mass. 461, 464–465 (1949). “The taking must be with intent permanently to deprive the person of their property.” Stewart, supra. The defendant here challenges the adequacy of the factual basis for the intent element.
With respect to evidence of the defendant's intent, we begin by noting that “intent often cannot be proved by direct evidence, but instead must be proved by inferences drawn from evidence of relevant circumstances.” Commonwealth v. Oliver, 60 Mass.App.Ct. 770, 776 (2004). Here, the facts adduced at the plea hearing showed that Jenkins pointed a gun at the victim and said, “Give me your money.” When the victim said he had no money, Jenkins demanded his wallet. “The victim flipped his wallet out of his pocket and it landed on the ground. [Jenkins] ... told him to pick it up once he realized there was no money in it.” The defendant and Jenkins then fled down the street.
The prosecutor's recitation did not explain how Jenkins came to realize that the wallet was empty. According to the police report appended to the defendant's new trial motion, the victim handed his wallet to Jenkins; “when he found no money in the wallet, he threw it to the ground.”
From these facts, the judge could have inferred that when the defendant and Jenkins robbed the victim, the defendant possessed the intent to permanently deprive the victim of his wallet and any cash it contained. See Commonwealth v. Schraffa, 2 Mass.App.Ct. 808, 809 (1974) (holding that judge did not err in refusing to instruct “that the defendant could not have intent to steal merchandise that he did not know the existence of”; jury could have found “that the defendant intended to steal whatever the truck contained although its contents may have been unknown to him when the truck was taken” [quotation omitted] ). The fact that there was no money in the wallet does not preclude a finding of intent to steal. Nor does the fact that the codefendants chose to discard the wallet once they discovered it was empty. The codefendants' intent to deprive the victim permanently was established by the time they demanded his wallet. See Commonwealth v. Stovall, 22 Mass.App.Ct. 737, 742 (1986) (“Neither the intent to repay a loan obtained by false pretenses nor actual payment, however, negates criminality”); Commonwealth v. Pena, 39 Mass.App.Ct. 332, 336–337 (1995) (where defendant did not succeed in driving away with Jaguar after entering driver's seat, whether he had “larcenous intent permanently to deprive the car's owner of the Jaguar was for the jury to decide on all of the facts”). The prosecutor's recital of the evidence provided a sufficient factual predicate for the judge to accept a plea of guilty to unarmed robbery.
The fact that the codefendants chose not to keep the wallet does not turn the completed act of robbery into a mere attempt.
The defendant's other arguments, contingent on the withdrawal of his guilty plea, need not be addressed.