Commonwealth v. Najjar

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18-P-638 Appeals Court

COMMONWEALTH vs. WILLIAM NAJJAR.

No. 18-P-638.

Middlesex. March 6, 2019. - November 21, 2019.

Present: Rubin, Kinder, & Singh, JJ.

Controlled Substances. Firearms. Constitutional Law, Plea,
Sentence, Assistance of counsel, Waiver of constitutional
rights. Due Process of Law, Plea, Sentence, Assistance of
counsel. Practice, Criminal, Plea, Sentence, Assistance of
counsel, Waiver, Self-representation. Waiver.

Indictments found and returned in the Superior Court
Department on July 1, 2010.

A motion to withdraw guilty pleas, filed on April 7, 2017,
was considered by Thomas P. Billings, J.

Amy Codagnone for the defendant.
Konstantin Tretyakov, Assistant District Attorney, for the
Commonwealth.

RUBIN, J. On September 23, 2013, the defendant pleaded

guilty to trafficking in cocaine, see G. L. c. 94C, § 32E (b),

four counts of distribution of cocaine, see G. L. c. 94C,

§ 32A (c), conspiracy to distribute cocaine, see G. L. c. 94C,
 2

§ 40, possession of a firearm in the commission of a felony, see

G. L. c. 265, § 18B, and possession of ammunition without a

firearm identification card, see G. L. c. 269, § 10 (h) (1).

The plea judge accepted the defendant's guilty pleas and

sentenced him on the trafficking charge to imprisonment of not

fewer than eight years, the minimum mandatory sentence on that

charge, and not more than nine years. The plea judge also

sentenced the defendant to not fewer than eight years but not

more than nine years on the distribution and possession of a

firearm in the commission of a felony charges, to be served

concurrently with the sentence on the trafficking charge. On

the conspiracy and possession of ammunition without a firearm

identification card charges, the plea judge sentenced the

defendant to concurrent two-year probationary terms from and

after the committed sentences.

Approximately four years after sentencing, the defendant

filed a motion to withdraw his guilty pleas claiming that (1)

they were made without the assistance of counsel and without a

valid waiver of counsel, (2) they were not knowing and

voluntary, and (3) his counsel was ineffective for failing to

pursue a particular theory in support of a motion to suppress

evidence. A different judge (motion judge) denied the motion

without an evidentiary hearing, but revised and revoked the

prison sentence to not fewer than eight years but no more than
 3

eight years and one day.1 The defendant presses the same

arguments on appeal. We vacate the order denying the

defendant's motion and remand for further proceedings.

1. Validity of the pleas. We turn first to the

defendant's claim that his pleas were not knowing and voluntary.

To satisfy the basic requirements of due process, a guilty plea

must be knowing -- courts sometimes use the word "intelligent"

-- and voluntary. Commonwealth v. Furr, 454 Mass. 101, 106

(2009). See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 637

n.5 (2007) ("Use of the term 'knowing' is but another way of

describing the longstanding requirement that a guilty plea be

made intelligently . . ."). The judge must ensure that the

defendant "has a full understanding of what the plea connotes

and of its consequence." Boykin v. Alabama, 395 U.S. 239, 244

(1969). He must understand the "direct consequences" of his

plea (citation omitted). Commonwealth v. Roberts, 472 Mass.

355, 362 (2015). These consequences include the mandatory

minimum sentence to which the defendant will be subject. See

Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 579 (2001)

(even when defendant pleads guilty and will be sentenced by

agreement to straight probation, maximum and mandatory minimum

1 This reduction was consistent with the defendant's
sentencing recommendation and the plea judge's statement before
the pleas regarding the sentences she was "likely to impose."
 4

sentences that could be imposed following violation of probation

conditions are not "collateral to the crime to which the plea

[is] given. Rather, [they are] a direct consequence of, and in

recognition of, the crime and the plea thereto . . ."). See

also Commonwealth v. Murphy, 73 Mass. App. Ct. 57, 66-67 (2008)

(defective colloquy "risked not adequately informing the

defendant that failing to successfully complete his period of

probation could result in the imposition of a period of

incarceration for at least a minimum of twenty years"). This

means that a defendant cannot tender a constitutionally adequate

guilty plea without knowing that mandatory minimum sentence.

Indeed, this proposition has been "clearly established" for at

least a decade. Jamison v. Klem, 544 F.3d 266, 278, 279 (3d

Cir. 2008) ("it can not seriously be argued that serving five

years in prison pursuant to a mandatory minimum sentence is a

'collateral' consequence of a guilty plea and not a direct

result of it"; it is "clearly established" that a guilty plea

entered without knowledge of the mandatory minimum sentence

violates due process). See Boykin, supra at 243-244. See also

Vittitoe v. State, 556 So. 2d 1062, 1064 (Miss. 1990) ("A canvas

of state law authority reveals no fewer than two dozen cases

holding that guilty pleas made with ignorance of a minimum or

mandatory minimum sentence are unenforceable"). The
 5

Commonwealth bears the burden to show the plea was knowing and

voluntary. Furr, supra at 107.

The trafficking charge carries an eight-year mandatory

minimum sentence. G. L. c. 94C, § 32H. In his affidavit, the

defendant asserts that during plea negotiations, after he told

the prosecutor that he had "no intention of pleading guilty to

an 8-year sentence," the prosecutor "declined to amend his terms

but advised [the defendant] of recent changes in legislation

that would permit [him] to earn good time on the trafficking

sentence, with parole eligibility in roughly half of the term."

The motion judge found those assertions "creditable," but

denied the defendant, who was acting pro se when he entered his

guilty pleas, an evidentiary hearing on the basis that the

information given by the prosecutor was not "material." Because

we conclude that the knowingness of the defendant's pleas

depends on whether the prosecutor misinformed the defendant, we

also conclude that there was error in denying the defendant's

motion in the absence of an evidentiary hearing or a finding of

fact on the question whether the defendant was in fact told that

by the prosecutor.

To begin with, as the motion judge found, the defendant's

assertion is creditable: there is no reason to disbelieve that

the prosecutor so advised the defendant, because at the

sentencing hearing a few days after the plea hearing, after the
 6

judge sentenced the defendant, in response to the defendant's

question about eligibility for parole and good time credits, the

prosecutor interjected, "I do believe that because of the change

in the statute that there has been a change in the availability

of good time for min[imum] man[datory] sentences, so that is

more favorable to the defendant than it was before the change in

the law." The judge responded, "Right. But that's [not] for us

to be involved." This indicated the prosecutor's (and perhaps

even the plea judge's) incorrect belief, consistent with the

defendant's affidavit, that he would be eligible for parole and

good time credits, and that, hence, the defendant was not in

fact subject to an eight-year mandatory minimum sentence. The

Commonwealth does not dispute what the prosecutor told the

defendant, arguing only that "even if the prosecutor's

assertions about these matters were incorrect . . . , the

defendant is not entitled to withdraw his pleas."

If the defendant, then pro se, was told by the prosecutor

during plea negotiations that if he (the defendant) pleaded

guilty to charges including trafficking in cocaine, G. L.

c. 94C, § 32E (b), he would be subject to a minimum sentence of

eight years, but would be eligible for good time credits and

parole, such that he might be released after only "roughly half

of the term," it could well have formed the basis for the
 7

defendant's belief about the actual minimum sentence he faced.2

Because the question before us is the voluntariness and

subjective knowingness of the defendant's guilty pleas, the

Commonwealth cannot prevail simply because the incorrect

statement by the prosecutor during plea negotiations may have

been inadvertent.

Even assuming the prosecutor made the erroneous statement

during plea bargaining, the defendant could perhaps have gained

knowledge of the consequences of his pleas at the change of plea

hearing. The plea judge, after all, was required under Mass. R.

Crim. P. 12 (c) (3) (A) (ii) (c), as appearing in 470 Mass. 1501

(2015),3 to tell the defendant both the maximum and the minimum

mandatory sentences that he faced on each of the charges to

which he was pleading. The plea judge, however, articulated the

maximum sentence but failed to articulate the mandatory minimum

sentence. This violated rule 12, but, more significantly for

present purposes, and, as relevant to the defendant's argument,

if the defendant were given by the prosecutor the erroneous

2 Indeed, as described in the text supra, the defendant
expressed surprise at the sentencing hearing that he would not
get good time credits or be eligible for parole, and the
prosecutor's (once again) mistaken statement that the defendant
would receive at least good time credits appears to have been
intended precisely to reassure him.

3 We note that the plea hearing was held prior to the
amendment of rule 12, which appears at 482 Mass. 1499 (2019).
 8

information the defendant describes, the failure of the plea

judge at the colloquy to inform the defendant of the mandatory

minimum sentence on the charges to which the defendant was

pleading guilty, and the absence of any other evidence on the

issue, means the Commonwealth cannot on the record before us

satisfy its burden to prove that the defendant subjectively knew

that, by pleading guilty, he would be subject to a minimum of

eight years of imprisonment.

As a matter of due process, unknowing pleas are void.

McCarthy v. United States, 394 U.S. 459, 466 (1969). They must

be vacated regardless of whether the court concludes that, if

properly informed about the consequences of his plea, the

defendant would have nonetheless pleaded guilty. "As a general

proposition of constitutional law, a guilty plea must be vacated

or nullified unless the record of the plea proceedings

demonstrates that the defendant entered the plea knowingly and

voluntarily. [Boykin, 395 U.S. at 242-243]." Rodriguez, 52

Mass. App. Ct. at 581.

If the prosecutor did misinform the defendant as he

asserts, and if he, in fact, subjectively did not understand at

the time of the pleas that he was subject to a minimum mandatory

sentence, he is entitled to have the trafficking guilty plea

vacated. There must therefore be a finding of fact on these

issues by the motion judge. Consequently, we will vacate the
 9

order denying the defendant's motion and remand for such finding

by the motion judge, who may on remand also hold an evidentiary

hearing at which either party may introduce evidence on one or

both issues, i.e., whether the defendant was misinformed and

what his subjective understanding was.

The Commonwealth posits initially that "the defendant was

aware of the minimum sentence for trafficking in cocaine . . . ,

but also that he was asking the court to impose exactly that

sentence understanding that the term of his imprisonment could

not be 'any lower than that.'" But the question is not whether

the defendant knew the minimum sentence. It is whether he knew

it was mandatory, that is, that he would not be eligible for

good time credits and parole.

As to this question, the Commonwealth argues that it does

not matter whether he knew that, relying primarily on

Commonwealth v. Indelicato, 40 Mass. App. Ct. 944, 945 (1996), a

case involving an alleged failure of defendant's counsel to

advise the defendant that his conviction would limit his ability

to obtain a firearm permit, in which we said, "A guilty plea is

not necessarily regarded as having been made involuntarily or

unintelligently because a defendant has received inaccurate or

incomplete advice from his counsel concerning the penal

consequences of the plea." In addition, we noted in dictum that
 10

"[m]istaken advice as to parole eligibility . . . has been held

not to vitiate the basis for a plea." Id.

Notwithstanding the skillful argument by counsel for the

Commonwealth, the issue here is not the defendant's knowledge

about parole eligibility, but whether he was told as required by

the due process clause that a consequence of his plea would be

an eight-year mandatory minimum sentence. It changes nothing

that the prosecutor happened to misinform the defendant of this

by telling him that among the reasons his sentence was not

mandatory was eventual parole eligibility. In any event, the

only cases Indelicato cites that found pleas knowing and

voluntary despite inaccurate advice of defense counsel are

Commonwealth v. Cepulonis, 9 Mass. App. Ct. 302 (1980), and

Commonwealth v. Stanton, 2 Mass. App. Ct. 614 (1974), in both of

which the court held only that "predictions by counsel as to the

time which a defendant might have to serve," Cepulonis, supra at

309, quoting Stanton, supra at 622, do not render a plea

unknowing because, as we said in Cepulonis, supra at 310, an

inmate's receipt of parole is "highly dependent on a variety of

discretionary factors which are usually considered and applied

on a case-by-case basis under applicable statutory and

regulatory formulae." See Stanton, supra ("The judge was not

required to advise the defendant on the legal and practical

complexities of the parole law"). In fact, in Cepulonis, supra,
 11

we made clear that "a plea's validity might be affected by

manifestly erroneous advice as to the time of confinement given

to a defendant," and in Stanton, supra, we specifically

distinguished a case in which a defendant "misunderstood his

rights with respect" to eligibility for parole, which is what

the defendant asserts happened in this case.

The dissent does not disagree that a plea cannot be knowing

in the absence of knowledge of any minimum mandatory sentence,

or that an unknowing plea must be vacated without inquiry into

whether the defendant would have pleaded guilty had he been

properly informed of the direct consequences of the plea. Post

at . The dissent takes a different tack, but it rejects only

an argument the defendant does not make, concluding that the

failure of the plea judge to advise the defendant of the

mandatory minimum sentence, which, as described supra, violated

rule 12, does not, standing alone, require reversal of the order

denying the defendant's motion to withdraw his guilty pleas.

Post at note 1 ("failure to advise a defendant of the mandatory

minimum sentence" not "an error of constitutional dimension

requiring automatic vacatur of a guilty plea" [emphasis added]).4

4 In support of its position, the dissent, post at ,
cites Hiskin, a case about a failure of the judge to give all
the information required by rule 12. See Hiskin, 68 Mass. App.
Ct. at 641-642 ("Advice as to the statutorily prescribed
sentence, or that to be imposed upon acceptance of the plea, is
 12

But this conflates the requirement of what the judge must

tell the defendant under rule 12 with the requirement of what

the defendant must know -- from some source -- in order for his

plea to be knowing under the due process clause. The failure of

the plea judge to inform the defendant of a piece of information

required by the rule will not automatically entitle a defendant

to withdraw his guilty plea. See, e.g., Rodriguez, 52 Mass.

App. Ct. at 580. In that context, we ask whether a judge's

advice would have "made a difference" to a defendant's decision

to plead guilty. Id. But where a defendant lacks actual

knowledge of what the plea connotes or of the direct

consequences of the plea, it is unknowing in a constitutional

sense, and must be vacated without any such inquiry.5 To be

not among the 'consequences of the plea' necessary for a plea to
be intelligent under the Federal or State constitutions. To the
extent that advice about sentencing consequences may have been
required, the requirement was one of rule" [emphases added]).
And in reiterating the point with the language quoted in the
parenthetical in the test, the dissent cites a case in which we
held that a judge's failure to inform a defendant of the
mandatory minimum sentence in violation of rule 12 does not
violate the Constitution and thus require "automatic reversal,"
but only so long as the defendant has an actual, subjective
understanding of the mandatory minimum sentence. See Murphy, 73
Mass. App. Ct. at 67. See also id. at 63, quoting Rodriguez, 52
Mass. App. Ct. at 580 ("We will not assume that the defendant's
plea was involuntary and unknowing and say as a matter of law
that justice was not done simply because the record reflects
noncompliance with rule 12").

5 Thus, in Rodriguez, 52 Mass. App. Ct. at 581, for example,
on which the dissent principally relies, we did, as the dissent
 13

sure, Rule 30 (b), as appearing in 435 Mass. 1501 (2001), of the

Massachusetts Rules of Criminal Procedure authorizes judges to

allow motions for a new trial only if "it appears that justice

may not have been done." But no materiality analysis must be

undertaken in cases such as this because "[i]n the context of a

guilty plea, justice is not done when a defendant's plea of

guilt is not intelligent and voluntary." Hiskin, 68 Mass. App.

Ct. at 637.6 And of course the dissent acknowledges, as it must,

says, "affirm[] the order denying a motion to withdraw a
defendant's guilty plea based on the defendant's claim that he
was not informed of the mandatory minimum sentence" as required
by rule 12 (emphasis added). Post at . But, because
Rodriguez also claimed, as the defendant does in this case, that
his plea was not knowing, we independently examined whether the
defendant "had actual knowledge of the relevant information,"
concluding that his claim to the contrary was not credible, and
that, as a consequence, despite the judge's failure, the plea
was "knowingly and voluntarily made" (citation omitted).
Rodriguez, supra at 583.

6 "We reject the Commonwealth's contention that the
defendant's argument must fail automatically because he did not
allege that he suffered any specific harm from the deficient
plea colloquy, or that he would not have pleaded guilty had he
been given a proper colloquy. When a defendant has received a
constitutionally inadequate plea colloquy, he is entitled to
withdraw that plea. . . . The defendant need not make any
further showing in order to withdraw his plea." Commonwealth v.
Colon, 439 Mass. 519, 529 (2003). See McCarthy, 394 U.S. at 466
("if a defendant's guilty plea is not equally voluntary and
knowing, it has been obtained in violation of due process and is
therefore void").

Even were we to undertake a materiality analysis, the
dissent does not explain why, if the prosecutor was content with
an eight-year sentence with a possibility of parole and good
time credits, he might not have adjusted the charges to allow a
 14

that "the motion judge did not make findings" on whether "the

defendant subjectively knew" the minimum sentence to which he

was subject was a mandatory minimum.7 Post at .

Finally, although it forms no part of our analysis, we note

that an alternative holding today might invite prosecutors not

plea with that result if informed of his error about the
mandatory nature of the trafficking sentence.

7 In a footnote, the dissent asserts that "the record
suggests that the defendant was well aware of the eight-year
mandatory minimum sentence." Post at note 4. As the dissent
notes, during the plea colloquy, the prosecutor did once use the
word "mandatory" in referring to the sentence; the prosecutor
stated that "there has been a reduction in the minimum mandatory
penalty, that the minimum sentence for trafficking cocaine over
100 grams has been changed retroactively to be eight years,
rather than ten years." Id. However, the record makes clear
that when the prosecutor used the term "minimum mandatory" he
(incorrectly) included nonmandatory minima. Indeed, as
described above, at sentencing the prosecutor said on the
record, "For Mr. Najjar, I do believe that because of the change
in the statute that there has been a change in the availability
of good time for min[imum] man[datory] sentences." A single
reference to an eight-year minimum mandatory by a prosecutor
laboring under a fundamental misunderstanding of the concept,
and who previously told the defendant that good time credits and
parole would be available under the sentence he would be ordered
to serve, cannot satisfy the Commonwealth's burden to prove that
the defendant subjectively knew that, by pleading guilty, he
would be subject to a minimum of eight years of imprisonment.

The dissent also cites the defendant's statement that eight
years was a long period of rehabilitation and he "[did not] see
the court going any lower than that." Post at note 4. But this
means only what it says: that the plea judge would impose an
eight-year sentence.

In any event, it will be up to the motion judge on remand
to make a finding about the subjective knowledge of the
defendant.
 15

to take due care when informing defendants -- in this case a pro

se defendant -- of the actual sentences to which they will be

subject should they agree to a plea deal proffered by the

government. Given the seriousness of our prosecutors'

responsibility with respect to these matters, we should not

lightly do anything that might undermine the seriousness with

which they appropriately take it.

Consequently, the order denying the motion to withdraw the

guilty pleas must be vacated and the case remanded for the judge

to make the relevant factual findings, after an evidentiary

hearing if he finds one necessary. Because the question whether

the unknowingness of the trafficking plea also would require

vacatur of the other pleas has not been briefed in this court,

the motion judge should address the issue in the first instance

on remand if he concludes that the trafficking plea was

unknowing under the standard we have described. Because we

express no opinion on that issue, we turn to the defendant's

other arguments, which, if successful, would require vacatur of

all of his guilty pleas.

2. Validity of defendant's waiver of right to counsel.

The defendant claims that his guilty pleas were unconstitutional

because there was no good cause to allow him to proceed pro se
 16

prior to the plea hearing and his waiver of the right to counsel

was not knowing and voluntary.8 We disagree.

"The guaranties of the Sixth Amendment to the Constitution

of the United States provide a criminal defendant with the right

to effective assistance of counsel at each critical stage of the

proceedings against him, including a hearing where he pleads

guilty." Cepulonis, 9 Mass. App. Ct. at 304. However, "even in

cases where the accused is harming himself by insisting on

conducting his own defense, respect for individual autonomy

requires that he be allowed to go to jail under his own banner

if he so desires and if he makes the choice with eyes open"

(quotation and citation omitted). Commonwealth v. Mott, 2 Mass.

App. Ct. 47, 52 (1974). The defendant's right to represent

himself is not unqualified. It must be unequivocal and the

judge must be "satisfied that the right is being exercised

knowingly and intelligently, and not for an ulterior purpose."

Id. at 51. But it is the defendant's right, and it is not for

the judge to deny the knowing and voluntary exercise of that

right simply because the judge recognizes, as he or she will in

most every case, that it is a poor decision. Once the request

to proceed pro se has been made, "[t]he motivation of the

accused in making the request should be examined," but only to

8 The defendant's request to proceed pro se was made via
counsel's motion to withdraw, made at the defendant's request.
 17

ensure that there is no ulterior motive, "and the accused should

be apprised of the pitfalls in proceeding pro se." Id. at 52.

The defendant's right to proceed pro se can be circumscribed if

it is raised during or on the eve of trial. It is in these

situations that the judge must weigh "the interests of the

courts and the public in efficient trial administration" with "a

showing of good cause to support the defendant's motion."

Commonwealth v. Chavis, 415 Mass. 703, 712 (1993). In these

cases, a good cause requirement is interposed as a limit to the

defendant's right. It is designed to protect efficient trial

administration, not to protect a defendant from making a poor

decision. Thus, here, even though the motion to proceed pro se

was made during the trial, the plea judge allowed the motion, so

the defendant has no complaint based on good cause. We agree

that when allowing the defendant's motion to proceed pro se the

plea judge did not, as required, inquire into the reasons the

defendant sought to represent himself at trial. See Mott, supra

at 51-52. However, given the course of the proceedings before

the plea judge, any error was not prejudicial, as it would have

been clear to her that there was no ulterior purpose in the

defendant's request. Against the advice of his fourth lawyer,

the defendant insisted on pursuing an argument that the wiretap

warrant applications were flawed because the Commonwealth had

intentionally omitted his name from the warrant applications to
 18

gain a tactical advantage. Two days before his motion to

proceed pro se was allowed, the defendant appeared before the

plea judge and sought to proceed pro se to argue a motion for

reconsideration of the order denying his motion to suppress then

pending before another judge (suppression judge). The defendant

explained to the plea judge that he had an opinion different

from his attorney's regarding the content of the motion to

reconsider and wanted to represent himself to argue the motion.

The plea judge did not act on the request to proceed pro se, but

she reminded the defendant that he had had "a string of very

good lawyers" who were "competent and qualified to represent"

him. The plea judge concluded the hearing by explaining that

she would contact the suppression judge to inquire about the

status of the defendant's motion to reconsider. She told the

defendant, "[W]hen you come in on Friday, if there are further

issues that need to be addressed relative to that, . . . then

we'll take it up then. But at the moment, we're going to trial

on Friday."

Two days later, as the trial was about to begin, the

defendant filed pro se an amended motion for reconsideration and

request for an evidentiary hearing further explaining his legal

theory. The plea judge informed the defendant and his counsel

that there would be no further delays and that trial would

commence. Defense counsel filed a motion to withdraw and
 19

informed the plea judge that "[my client] desires to exercise

his Constitutional right to represent himself, and so he's asked

me to withdraw." The plea judge then engaged in a colloquy that

was adequate except for the absence of a question about the

reason the defendant sought to represent himself. Given this

course of events, though, the plea judge was well aware of the

defendant's motives. The motives may not have amounted to what

someone trained in the law would describe as good cause, but

they were not ulterior. And indeed, after the defendant's

request to represent himself was allowed, the plea judge heard

argument from the defendant and allowed him further time to

pursue his suppression theory by filing an emergency petition

for interlocutory relief with the Supreme Judicial Court

pursuant to G. L. c. 211, § 3. The petition was denied later

that day. The judge empaneled a jury, but the change of plea

occurred before opening statements.

The defendant now argues that his decision to proceed pro

se was not voluntary and intelligent, because it was not the

case -- and he falsely believed -- that counsel's withdrawal was

necessary for him to present his desired arguments, which, he

argues, counsel could have filed himself under Commonwealth v.

Moffett, 383 Mass. 201 (1981). Moffett, however, deals with

counsel's opinion that an argument is "frivolous or otherwise

lacking in merit," id. at 207, and the record reveals that the
 20

difference of opinion between counsel and the defendant did not

turn on counsel's judgment that the motion was frivolous. We

have compared the motion for reconsideration submitted by

counsel with that submitted by the defendant. The motions are

framed differently, but the arguments supporting them are

essentially the same -- indeed, most of the defendant's motion

appears to have been copied from counsel's motion. Counsel's

reason for not submitting the defendant's motion appears,

rather, to have been strategic, not based on any conclusion that

the motion was frivolous. Indeed, counsel had filed a motion to

withdraw some five months earlier due to similar disagreements

about how to present the motion for reconsideration, a motion

that was denied without prejudice.9 A strategic disagreement

with counsel cannot be addressed by the Moffett procedure.

Thus, the availability of that procedure has no bearing on the

correctness of the motion judge's conclusion that the decision

to proceed pro se was voluntary and intelligent.

We also agree with the defendant that the plea judge erred

in failing to ask the defendant to sign a written waiver of

9 That the disagreement was strategic is supported by
statements made by the defendant and counsel at that hearing.
The defendant stated: "I just, me and [counsel] just share
different views on the motion, and I just feel as if I can
articulate the argument, you know, more stronger myself."
Counsel's comments were similar: "It's an odd circumstance in
that my client and I disagree materially on how to proceed on
the case."
 21

counsel and to certify the written waiver as required by Mass.

R. Crim. P. 8, as amended, 397 Mass. 1226 (1986), and S.J.C.

Rule 3:10, as appearing in 475 Mass. 1301 (2016). But "[t]he

absence of a written counsel waiver does not alone require

reversal, provided there is sufficient other evidence in the

record to demonstrate that the waiver was voluntary and

intelligent." Commonwealth v. Leonardi, 76 Mass. App. Ct. 271,

277 (2010). See Commonwealth v. Pamplona, 58 Mass. App. Ct.

239, 242-243 (2003). Given the judge's extensive pretrial

dialogue with the defendant regarding the reason he wished to

proceed pro se, the otherwise thorough colloquy, and the

defendant's unequivocal responses, we are confident that the

defendant was "adequately aware of the seriousness of the

charges, the magnitude of his undertaking, the availability of

advisory counsel, and the disadvantages of self-representation."

Commonwealth v. Jackson, 376 Mass. 790, 795 (1978).

3. Ineffective assistance of counsel. Finally, the

defendant claims that his second attorney was ineffective in his

presentation of the motion to suppress evidence for failing to

pursue an argument that the Commonwealth had violated the

constitutional particularity requirement and the wiretap

statute, G. L. c. 272, § 99, by intentionally omitting the

defendant's name from the wiretap applications and warrants in

order to prevent an adverse probable cause determination. The
 22

defendant alleged the Commonwealth did so because it had

"insufficient evidence as to [the defendant's] identity to meet

the probable cause standard." Ordinarily, to prevail on a

motion to withdraw a plea for ineffective assistance of counsel,

a defendant is required to "show[] that his attorney's

performance fell 'measurably below that which might be expected

from an ordinary fallible lawyer,' and that he suffered

prejudice because of his attorney's unprofessional errors."

Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting

Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). Here, he must

demonstrate that the motion to suppress that forms the basis of

his claim would likely have succeeded. See Commonwealth v.

Buckman, 461 Mass. 24, 40 (2011).

The motion judge concluded that, despite the omission of

the defendant's name in the wiretap warrants and applications,

his role in the drug operation "was apparent in the affidavits

supporting the extensions of the original wiretap warrant" and

the warrant applications clearly set forth probable cause.

Therefore, the motion judge concluded that omission of the

defendant's name from the warrant applications was not grounds

for suppression. We discern no error in this conclusion.10

10 The defendant also argues that his second counsel was
ineffective because he was friends with one of the prosecutors
who wrote the warrant application, and argues that counsel did
 23

4. Conclusion. The order denying the motion to withdraw

the guilty pleas is vacated, and the case is remanded for

further proceedings consistent with this opinion, including the

holding of an evidentiary hearing should the motion judge

conclude it is necessary. If the judge concludes that the

defendant was in fact misinformed by the prosecutor about the

mandatory minimum and that the defendant did not know at the

time of his pleas that that was the type of sentence he would be

subject to, the motion to withdraw his guilty plea on the

trafficking charge shall be allowed. If the plea to the

trafficking charge is withdrawn, the motion judge should

determine in the first instance whether this requires vacatur of

all the defendant's pleas or only that one, an issue not briefed

in this appeal.

So ordered.

not make the above argument so as not to sully his friend's
reputation. While "genuine" conflicts require reversal without
prejudice, "potential" and "tenuous" ones require a showing of
prejudice. Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986). A
genuine conflict exists when the attorney's independent
professional judgment has been impaired "either by his own
interests, or by the interests of another client," which it is
the defendant's burden to show. Id. The defendant has not
cited a case in which friendship with opposing counsel
constituted a genuine conflict requiring automatic reversal, nor
has he satisfied his burden to show that counsel's independent
professional judgment was impaired. If this relationship
created a conflict at all, it was at most tenuous or potential,
and, for the reasons above, the defendant has failed to show
prejudice.
 KINDER, J. (dissenting). Faced with evidence against him

that the motion judge described as "overwhelming," the defendant

filed a motion to suppress the fruits of the wiretap warrant

that resulted in the seizure from his residence of 190 grams of

cocaine, more than $20,000 in cash, and a firearm. When a

succession of four appointed lawyers refused to adopt the

defendant's strategy on his motion to suppress, the defendant

sought and received the plea judge's permission to represent

himself. After the defendant's suppression theory was rejected

in both the Superior Court and the Supreme Judicial Court, he

negotiated a favorable plea agreement with the Commonwealth,

which resulted in a sentence of no less than eight years'

imprisonment, the mandatory minimum sentence on his drug

trafficking charge.

Four years later the defendant filed a motion to withdraw

his guilty pleas arguing, among other things, that he did not

know he faced a mandatory minimum eight-year sentence on the

drug trafficking charge. Specifically, the defendant claimed

that he was misled by the prosecutor regarding his eligibility

for good time credit and parole. The motion was denied in a

thorough and well-reasoned written decision. I agree with the

motion judge that the prosecutor's statements, if made, were

"unfortunate and avoidable." I also agree with the majority

that the plea judge erred in failing to specifically inform the
 2

defendant during the plea colloquy that the mandatory minimum

sentence on the drug trafficking charge was eight years.

However, I discern no abuse of discretion in the motion judge's

conclusion that, even assuming the prosecutor's misstatements,

the defendant's eligibility for good time credit and parole was

not material to his decision to plead guilty. Accordingly, I

respectfully dissent.

A motion to withdraw a guilty plea is treated as a motion

for a new trial under Mass. R. Crim. P. 30 (b), as appearing in

435 Mass. 1501 (2001), see Commonwealth v. Scott, 467 Mass. 336,

344 (2014), and may be granted only "if it appears that justice

may not have been done," Mass. R. Crim. P. 30 (b). Judges are

to apply the rule 30 (b) 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. Wallace, 92

Mass. App. Ct. 7, 10 (2017), quoting Commonwealth v. Fanelli,

412 Mass. 497, 504 (1992). "The judge is the final arbiter on

matters of credibility" (quotation and citation omitted), Scott,

supra, and his or her decision to deny a motion to withdraw a

plea "will not be reversed . . . unless it is manifestly unjust,

. . . or unless the plea colloquy was infected with prejudicial

constitutional error" (emphasis added), Commonwealth v. Correa,

43 Mass. App. Ct. 714, 716 (1997), and cases cited.
 3

The United States Constitution requires that a defendant

who decides to plead guilty "has a full understanding of what

the plea connotes and of its consequence." Boykin v. Alabama,

395 U.S. 239, 244 (1969). To be valid, a guilty plea must be

intelligent and voluntary. Commonwealth v. Hiskin, 68 Mass.

App. Ct. 633, 637 (2007). "A guilty plea is intelligent if it

is tendered with knowledge of the elements of the charges

against the defendant and the procedural protections waived by

entry of a guilty plea." Scott, 467 Mass. at 345. It "is

voluntary so long as it is tendered free from coercion, duress,

or improper inducements." Id. In Massachusetts, "[a]dvice as

to the statutorily prescribed sentence, or that to be imposed

upon acceptance of the plea, is not among the 'consequences of

the plea' necessary for a plea to be intelligent under the

Federal or State constitutions." Hiskin, supra at 641-642.1 "To

the extent that advice about sentencing consequences [is]

1 The majority correctly points out, ante at , that a
constitutionally inadequate plea colloquy renders a guilty plea
void, without regard to prejudice. See Commonwealth v. Colon,
439 Mass. 519, 529 (2003). However, in Colon the plea was
constitutionally inadequate because the plea judge failed to
advise the defendant of the nature of the charges or the
elements of the offenses. Id. at 520-521. I have found no
Massachusetts authority for the proposition that failure to
advise a defendant of the mandatory minimum sentence is an error
of constitutional dimension requiring automatic vacatur of a
guilty plea. Indeed, we previously said that it is not. See
Commonwealth v. Murphy, 73 Mass. App. Ct. 57, 65-67 (2008)
(automatic reversal not required where defendant not informed of
mandatory minimum sentence.)
 4

required, the requirement [is] one of rule." Id. at 642, citing

Mass. R. Crim. P. 12 (c) (3) (B), 378 Mass. 868 (1979).

It is true that the plea judge failed to adhere strictly to

rule 12 (c) (3) (B) when she did not specifically inform the

defendant that the eight-year term on the trafficking charge was

the mandatory minimum. But noncompliance with rule 12 (c) is

only one factor to be considered in deciding whether the

defendant's plea was knowingly and voluntarily made.

Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 580 (2001).

We also consider "the full record," Commonwealth v. Williams, 71

Mass. App. Ct. 348, 355 (2008), and "the defendant's sworn

responses to the judge's informed questions made in the

solemnity of a formal plea proceeding," Hiskin, 68 Mass. App.

Ct. at 638. Here, at the time that she found the defendant's

guilty pleas were knowing and voluntary, the plea judge had (1)

heard the defendant make legal arguments in support of his

motion to suppress, (2) observed him participate in jury

selection at trial, (3) considered the contents of a guilty plea

form executed by the defendant,2 and (4) engaged the defendant in

2 I note that the written waiver of rights form executed by
the defendant with the help of standby counsel is not included
in the record appendix. See Commonwealth v. Furr, 454 Mass.
101, 109 (2009) (signed waiver of rights form "may properly be
considered as part of the plea record to support a finding that
the plea was made intelligently"); Commonwealth v. Goodreau, 442
 5

two colloquies.3 During the plea colloquy, the defendant

expressed no confusion or concern about the sentence he faced.

Indeed, under oath, the defendant professed that he understood

the potential sentence, no one had forced him to plead guilty,

he had adequate time to speak with his family and standby

counsel regarding his decision to plead guilty, and he was

pleading guilty of his own free will. "Such professions must

mean something, and must have consequence, if guilty plea

colloquies are to be more than stylized and empty formalities."

Id. at 640. Based on this record, the motion judge acted within

his discretion in rejecting, without an evidentiary hearing, the

defendant's claim that his guilty plea was not knowingly made.

See Commonwealth v. Torres, 469 Mass. 398, 402-403 (2014)

(evidentiary hearing required only when defendant raises

substantial issue).4

Mass. 341, 354 (2004) ("When weighing the adequacy of the
materials submitted in support of a motion for a new trial, the
judge may take into account the suspicious failure to provide
pertinent information from an expected and available source").

3 In addition to the plea colloquy, the plea judge engaged
the defendant in a colloquy regarding his waiver of counsel.

4 While the motion judge did not make findings regarding
what the defendant subjectively knew about the sentence he faced
on the trafficking charge, the record suggests that the
defendant was well aware of the eight-year mandatory minimum
sentence. The prosecutor referred to the eight-year sentence as
a mandatory minimum during the plea colloquy, and the defendant
acknowledged that eight years was a long period of
 6

While there is some superficial appeal to the majority's

suggestion that the case should be returned to the motion judge

for factual findings on exactly what the prosecutor told the

defendant, the motion judge ruled that, even if the defendant

was misled regarding his eligibility for good time credit and

parole, it was not material to his decision to plead guilty.

Ante at . I agree and see no abuse of discretion in the

motion judge's weighing of the relevant factors. See L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014). The record does

not support a conclusion that "compliance with rule 12 would

have made a difference in the decision of the defendant to plead

guilty." Rodriguez, 52 Mass. App. Ct. at 580. In Rodriguez,

this court affirmed the order denying a motion to withdraw a

defendant's guilty plea based on the defendant's claim that he

was not informed of the mandatory minimum sentence. Id. at 583-

584. Because the defendant in that case did not (1) claim

innocence, (2) identify a plausible defense, or (3) explain how

he would have benefited from proceeding to trial, the court

concluded that the "record, considered in light of the

discretion given to judges dealing with rule 30 (b) motions" did

not indicate that justice was not done. Id. at 583, quoting

Commonwealth v. Grant, 426 Mass. 667, 673 (1998). Here, the

rehabilitation and that he "[did not] see the court going any
lower than that."
 7

defendant is similarly situated and I see no reason to reach a

different result.

The record shows that the defendant knew, when the trial

began, that his primary theory of defense -- the motion to

suppress -- had been rejected in the Superior Court and by a

single justice of the Supreme Judicial Court. The defendant

also knew that the jury would hear evidence that he participated

in multiple recorded conversations during which he arranged to

deliver cocaine to one of his coconspirators; he made the

deliveries of cocaine that he had promised; and a large quantity

of cocaine, currency, and a firearm were seized at his

residence. I agree with the motion judge that this evidence was

"overwhelming," which is perhaps why "the defendant has not

addressed why he would have benefited from going to trial, and

he has made no claim of innocence." Rodriguez, 52 Mass. App.

Ct. at 581.

The record also shows that the defendant knew that a guilty

plea would likely result in a sentence of eight years, but if he

was convicted at trial he faced a maximum sentence of life in

prison and an assurance from the prosecutor that he would ask

for a five-year consecutive sentence on the charge of possessing

a firearm in the commission of a felony. Considering the

strength of the evidence, the absence of any plausible defense,

the favorable disposition negotiated by the defendant, and the
 8

fact that the defendant waited four years to claim that his plea

had not been knowing and voluntary, the motion judge rejected

the defendant's assertion that he would have proceeded to trial

had he known that he would not be eligible for parole and good

time. In these circumstances, I cannot conclude that this was

an abuse of his discretion. See Commonwealth v. Santiago, 394

Mass. 25, 30 (1985) (defendant must show plea primarily

motivated by prosecutor's representation and not by "assortment

of pressures that are intrinsic to such a situation");

Commonwealth v. Hoyle, 67 Mass. App. Ct. 10, 13 (2006) (delay in

raising issue is "indicium of satisfaction with the plea

agreement"); Rodriguez, 52 Mass. App. Ct. at 583 ("plea of

guilty is made under a variety of considerations and pressures,

no one of which necessarily renders the plea involuntary");

Commonwealth v. Indelicato, 40 Mass. App. Ct. 944, 945 (1996)

(defense counsel's mistaken advice as to penal consequences of

plea does not render plea involuntary and unintelligent).

Because the record does not support a conclusion "that denial of

the defendant's motion was manifestly unjust" (quotation and

citation omitted), Grant, 426 Mass. at 673, and because I see no

abuse of discretion or error of law in the motion judge's

decision to deny the defendant's motion to withdraw his guilty

pleas, I would affirm.