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15-P-1262 Appeals Court
COMMONWEALTH vs. LARON WALLACE.
No. 15-P-1262.
Hampden. April 13, 2017. - July 28, 2017.
Present: Kafker, C.J., Grainger, & Massing, JJ.1
Controlled Substances. Constitutional Law, Plea, Conduct of
government agents, Sentence. Due Process of Law, Plea,
Sentence. Practice, Criminal, Plea, New trial, Conduct of
government agents, Sentence, Affidavit.
Indictments found and returned in the Superior Court
Department on April 20, 2011.
A motion to withdraw a plea of guilty was heard by Tina S.
Page, J.
Sara A. Laroche for the defendant.
Benjamin Shorey, Assistant District Attorney, for the
Commonwealth.
KAFKER, C.J. The defendant, Laron Wallace, appeals from
the denial of his motion to withdraw his guilty plea to
possession with intent to distribute a Class B substance, G. L.
1
Justice Grainger participated in the deliberation on this
case prior to his retirement.
2
c. 94C, § 32A(c). He argues that the motion judge abused her
discretion in denying the motion because of the Commonwealth's
misconduct in a prior case of his involving the chemist Sonja
Farak, which came to light after the guilty plea was entered in
this case. Although Farak was not the chemist in this case, the
defendant contends that her misconduct in the prior case casts
doubt upon the justice of this plea because he considered the
concurrent sentences he received in the two cases to be
interrelated. Essentially he contends that because his motion
for a new trial was allowed and his sentence reduced in the
other case involving Farak, the same should occur in this case.
For the reasons that follow, we affirm the denial of the motion
to withdraw the guilty plea.
Background. The following facts are undisputed. On March
2, 2011, the defendant was arrested by Springfield police
executing a search warrant at an apartment located within 100
feet of a public park. The defendant was observed with a bag
containing thirty-seven rocks of a substance later determined to
be crack cocaine, packaged in smaller individual bags, at his
feet. A search of the defendant's person revealed $378 in cash
and two cellular telephones. Police also found two digital
scales in the apartment. The defendant was indicted in Superior
Court, docket no. 2011-00300 (the 2011 case) on two counts: (1)
possession with intent to distribute a Class B substance,
3
subsequent offense, G. L. c. 94C, § 34A(d); and (2) a drug
violation in a school or park zone, G. L. c. 94C, § 32J,
commonly known as the "school zone" statute.
At the time of his arrest, the defendant was at liberty on
bail and awaiting trial on docket no. 2010-00514 (the 2010
case), another drug distribution case before the same court. In
July of 2011, the 2010 case proceeded to a jury trial. At
trial, Farak, a chemist at the Department of Public Health's
State Laboratory Institute in Amherst (Amherst lab) testified
that the substance seized from the defendant was cocaine. The
Commonwealth also presented a drug certificate, created and
signed by Farak, stating that the seized substance was cocaine.
The jury convicted the defendant on both counts in that case,
and the trial judge sentenced him to a total of seven years of
incarceration.
Following his conviction in the 2010 case, the defendant
and the Commonwealth reached a plea agreement in the 2011 case.
The plea bargain provided that (1) the defendant would plead
guilty to possession with intent to distribute a Class B
substance, first offense; (2) the Commonwealth would file a
nolle prosequi on the school zone charge; and (3) the parties
would jointly recommend a sentence of five years to five years
and one day, to be served concurrently with the defendant's
seven-year sentence in the 2010 case.
4
At the plea colloquy for the 2011 case, the Commonwealth
stated that the recommended sentence "is . . . based on what the
Commonwealth believes that we could prove with regard to [the
defendant's] level of involvement in this particular
investigation. But we feel [five years] is an appropriate
recommendation given [the defendant's] history and the fact that
he's serving the seven-year minimum mandatory sentence." The
defense counsel told the plea judge that the recommended
sentence would not "disturb" the defendant's seven-year
sentence, but "[would] be within it," and asked the judge to
adopt the recommendation because it gave the defendant "some
light at the end of the tunnel." The judge expressed concern
that the defendant had committed a new drug offense while
awaiting trial for the previous one, and called the 2011 case a
"case[] that really scream[s] for the imposition of the
subsequent offender portion of the indictment." The judge
stated that she was adopting the parties' recommendation "[w]ith
great reluctance." The defendant was sentenced to a five-year
State prison term, "to run concurrent with the sentence imposed
[in the 2010 case]."
In 2013, after Farak was arrested for tampering with
evidence from the Amherst lab, the defendant filed a motion for
a new trial in the 2010 case, which was granted. On January 9,
2014, the defendant pleaded guilty on the first count of the
5
2010 case, to the lesser-included offense of possession with
intent to distribute a Class B substance. The Commonwealth
filed a nolle prosequi on the school zone charge. The defendant
received a new sentence of three and one-half years. There was
no discussion of the concurrent five-year sentence received in
the 2011 case during the colloquy in the 2010 case.
Six months later, the defendant filed a motion to withdraw
his guilty plea in the 2011 case, claiming that the intent of
his guilty plea was that he would not have to serve a sentence
any longer than the sentence in the 2010 case. The defendant
argued that, because his sentence in the 2010 case had been
reduced to three and one-half years following Farak's
misconduct, he would not receive the intended benefit of his
plea in the 2011 case unless that sentence was also reduced
accordingly. In support of his motion, the defendant attached
an affidavit in which he stated, "had I known of the criminal
activities of the Chemist Sonja Farak, I can't say whether I
would have accepted a plea agreement in [the 2010 case] because
[it] may not have resulted in a conviction." The motion judge,
who had taken the defendant's plea in the 2011 case, denied the
defendant's motion, reasoning that (1) the defendant did not
establish the requisite nexus, per Commonwealth v. Scott, 467
Mass. 336, 351 (2014), between Farak's misconduct in the 2010
case and his plea in the 2011 case; (2) the defendant's stated
6
interpretation of his plea agreement was unreasonable; and (3)
the defendant received the benefit of his plea in that his five-
year sentence in the 2011 case was shorter than the original
seven-year sentence in the 2010 case.
Standard of review. We treat a motion to withdraw a guilty
plea as a motion for a new trial pursuant to Mass.R.Crim.P.
30(b), as appearing in 435 Mass. 1501 (2001). Commonwealth v.
Cotto, 471 Mass. 97, 105 (2015). "Under Mass. R. Crim. P.
30(b), a judge may grant a motion for a new trial any time it
appears that justice may not have been done." Scott, supra at
344. "Judges are to apply the standard . . . rigorously, and
should only grant a postsentence motion to withdraw a plea if
the defendant comes forward with a credible reason which
outweighs the risk of prejudice to the Commonwealth."
Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992) (quotations
omitted). The decision whether to allow a motion to withdraw a
guilty plea is left to the sound discretion of the motion judge.
Commonwealth v. Sherman, 451 Mass. 332, 334 (2008). We show
particular deference to the rulings of a motion judge who also
presided over the plea colloquy. See Scott, supra.
Discussion. Due process requires that a guilty plea be
intelligently and voluntarily made. Commonwealth v. Furr, 454
Mass. 101, 106 (2009). "Typically, a motion to withdraw a
guilty plea will allege a facial defect in the plea procedures,
7
but a guilty plea also may be vacated as involuntary because of
external circumstances or information that later comes to
light."2 Cotto, supra at 105 (quotation omitted). See Scott,
supra at 345. "A plea may be defective, for example, where it
has been involuntarily induced by government misconduct that
since has been discovered." Commonwealth v. Ruffin, 475 Mass.
1003, 1003 (2016) (quotation omitted).
The Ferrara-Scott test. In Scott, supra at 346, a case
involving the convicted chemist Annie Dookhan, the Supreme
Judicial Court, relying on Ferrara v. United States, 465 F.3d
278 (1st Cir. 2006), defined a two-prong test for analyzing a
defendant's motion to withdraw a guilty plea for governmental
misconduct. First, the "defendant must show egregious
misconduct by the government that preceded the entry of the
defendant's guilty plea and that occurred in the defendant's
case." Cotto, supra at 106. Second, the "defendant must
demonstrate a reasonable probability that he or she would not
have pleaded guilty had he or she known of the government
misconduct." Ibid. Due to the "breadth and duration of
Dookhan's malfeasance," the court also "established a special
evidentiary rule" whereby a defendant seeking to withdraw a
guilty plea in a case where Dookhan served as the chemist was
2
The defendant does not allege any facial defect in the
plea procedure; he bases his entire claim on the external
circumstances argument.
8
"entitled to a conclusive presumption that egregious government
misconduct occurred in the defendant's case," thereby satisfying
the first prong of the analysis. Ibid. (quotation omitted).
In Cotto, supra at 107, the Supreme Judicial Court
applied the Ferrara-Scott framework to a case involving Farak's
misconduct. The court concluded that "Farak's misconduct
constitutes the type of egregious misconduct that satisfies the
first element of the first prong of the Ferrara–Scott analysis"
and that her misconduct "is attributable to the Commonwealth."
Ibid. The court also distinguished Scott, however, concluding
that "based on the evidence of her misconduct that had been
uncovered thus far," the defendant was not entitled to a
conclusive presumption "that Farak's misconduct occurred in his
case." Id. at 108. The court held that the evidence at that
point was insufficient to establish that "Farak's misconduct
constituted a systemic problem," unlike Dookhan's misconduct.
Id. at 108, 110. The court also ordered further investigation.
Here, in the defendant's 2011 case, Farak played no role in
the chemical analysis. Thus it is significantly different from
either the Scott or Cotto cases where either Dookhan or Farak
served as chemists in the cases under review. The defendant
argues nonetheless that Farak's misconduct in the 2010 case
should be imputed to his 2011 case because, had he known of the
misconduct before pleading guilty in the 2011 case, "he would
9
have been aware of the real possibility of acquittal in the 2010
Case or the opportunity to bargain for a lower sentence in that
case . . . and he would not have agreed to a sentence in the
2011 Case that was greater than the sentence in the 2010 Case."
This argument ignores express language in Scott holding
that "the defendant must demonstrate that the misconduct
occurred in his case." Scott, supra at 351.3 The court also
stated in Scott that it has "required the existence of such a
nexus in similar cases." Ibid. See Commonwealth v. Ellis, 432
Mass. 746, 764-765 (2000) (motion for new trial properly denied
when there was no evidence that police officers who had pleaded
guilty to criminal wrongdoing in another case had engaged in any
such wrongdoing in case on appeal).4 Although we do not rule out
the possibility that governmental misconduct in one case could
contaminate another case, we conclude that Farak's misconduct in
3
As explained above, in Scott, supra at 352-354, the court
also stated that that requirement was met whenever Dookhan
served as a chemist in the case given the extent of her
misconduct.
4
We note that even in cases where Farak was actually the
chemist in the case being appealed, the court in Cotto was not
prepared at that juncture to adopt the "conclusive presumption
articulated in Scott [in regard to Dookhan] that egregious
misconduct by Farak occurred in his case" because of her
misconduct in other cases. Cotto, supra at 111. We do not,
however, rely on the difference between the Cotto and Scott
standards here, particularly in light of the ongoing
investigation of Farak's misconduct ordered by the Supreme
Judicial Court. Even under the "conclusive presumption" Scott
standard, the defendant would not satisfy the first prong in the
instant case.
10
the 2010 case is far too attenuated from the defendant's 2011
case to meet the express egregious misconduct requirements set
out in Scott and Ferrara. Here, the Commonwealth and the
defense simply considered the effect of the prior sentence in
the 2010 case, which did involve Farak, when recommending the
concurrent sentence in the 2011 case, which did not involve her.
Thus, the first prong of the Ferrara-Scott test is not satisfied
here.
The defendant also fails to satisfy the second prong.
Under the second prong "the defendant must demonstrate a
reasonable probability that he would not have pleaded guilty had
he known of [the government's] misconduct." Scott, supra at
354-355. Here, the defendant does not even aver that, but for
Farak's misconduct, he would not have pleaded guilty in the 2011
case. See Scott, supra at 356. "At a minimum, the defendant
must aver to this fact." Ibid. Instead, the defendant states
only that he "can't say" whether knowledge of Farak's misconduct
would have changed his decision. This is too indefinite to
satisfy the second prong of the Ferrara-Scott framework, which
requires the defendant to "demonstrate a reasonable probability
that had he known of [the government's] misconduct, he . . .
would have insisted on taking his chances at trial." Id. at
358.
11
Even if the defendant's affidavit were more definitive
about his intentions, it would still have been insufficient.
The defendant must not only aver that he would have insisted on
going to trial, but "[a]dditionally, the defendant must
'convince the court that a decision to reject the plea bargain
would have been rational under the circumstances.'" Id. at 356,
quoting from Commonwealth v. Clarke, 460 Mass. 30, 47 (2011);
Padilla v. Kentucky, 559 U.S. 356, 372 (2010). Additional
factors that may be relevant to prove that the defendant would
not have pleaded guilty had he known of the governmental
misconduct at the time of his plea "may include whether the
defendant had a substantial ground of defense that would have
been pursued at trial or whether any other special circumstances
were present on which the defendant may have placed particular
emphasis in deciding whether to accept the government's offer of
a plea agreement." Scott, supra.
The defendant's affidavit did not suggest any substantial
grounds of defense. The defendant was found with a bag
containing thirty-seven individually-packaged rocks of crack
cocaine on the floor "directly in front of him." He had $378 in
cash and two cellular telephones on his person. Other indicia
of intent to distribute were found in the apartment.
Importantly, Farak's misconduct in the 2010 case was completely
unrelated to the evidence in the 2011 case.
12
As for special circumstances, the defendant relies on the
concurrent nature and claimed interconnection between the two
sentences. He contends that unless he is permitted to withdraw
his guilty plea, he will have been deprived of the benefit of
his bargain. "The touchstone for determining whether a
defendant has been improperly denied the advantages he expected
. . . is whether that defendant has reasonable grounds for
reliance on his interpretation of the prosecutor's promise, and
whether the defendant in fact relied to his detriment on that
promise." Commonwealth v. Parzyck, 41 Mass. App. Ct. 195, 197
(1996), quoting from Commonwealth v. Santiago, 394 Mass. 25, 28
(1985). Here the defendant received the benefit of his bargain
in the plea deal. The prosecutor did not promise concurrent
sentences under all circumstances, and expressly relied on the
defendant's prior criminal history. The defendant agreed to a
sentence that would run concurrently with the seven-year
sentence he was "already" serving. He received five years,
which was within that sentence, as agreed. The judge simply
stated that the sentences would run concurrently, and the
defendant made no objection to the sentence in the 2011 case.
The defendant also did not raise the supposed inseparability of
the two sentences when he filed his motion for a new trial in
the 2010 case, pleaded guilty, and received the reduced three
and one-half year sentence. The defendant's interpretation of
13
the plea agreement in the 2011 case as inseparably keyed to the
2010 sentence, regardless of changes to the 2010 sentence and
his criminal history, is therefore untenable.
Finally, the defendant was aware that the judge had
significant reservations about even accepting the five-year
recommended sentence. The defendant had "several prior
convictions for the very same charge" and committed the offense
while out on bail for a similar offense. For these reasons, the
judge accepted the recommended sentence "with great reluctance,"
stating that the case "screame[d]" for more severe punishment.
The judge warned the defendant that she could impose the maximum
penalty, ten years, and that she "could even impose it from and
after" the seven-year sentence he was serving. The judge,
however, accepted the recommended sentence of five years, to run
concurrently with the seven-year sentence. The school zone
charge was also nolle prossed. In these circumstances the
subsequent reduction of the seven-year sentence does not deprive
the defendant of the benefit of this bargain. We thus conclude
that the judge did not abuse her discretion in denying the
defendant's motion to withdraw his guilty plea.
Order denying motion to
withdraw guilty plea
affirmed.