NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-64
COMMONWEALTH
vs.
DAVID A. PAGAN, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2016, as part of a guilty plea to multiple charges
arising from the same course of events, the defendant David
Pagan admitted to sufficient facts to warrant a guilty finding
on a charge of operation of a motor vehicle while under the
influence of intoxicating liquor (OUI), and also pleaded guilty
to charges of resisting arrest and threatening to commit a
crime. The Commonwealth nol prossed the remaining charges
against the defendant, including assault and battery on a police
officer. In 2021, the defendant filed a motion to withdraw his
pleas and admission, under Mass. R. Crim. P. 30 (b), as
appearing in 435 Mass. 1501 (2001), claiming that had he known
that the breathalyzer test in his case was inadmissible -- due
to the misconduct of the State police Office of Alcohol Testing
(OAT), see Commonwealth v. Hallinan, 491 Mass. 730, 745-751
(2023) -- he would not have admitted to sufficient facts as to
the charge of OUI or otherwise pleaded guilty. The motion was
denied, and the defendant appeals. We affirm.
1. Background.1 a. Incident. At around 4 A.M. on April
23, 2016, a Palmer police officer was dispatched to a report of
a single vehicle crash. The report was made by the defendant
himself, who stated that an unidentified truck came into his
lane of travel and ran him off the road. When the officer
arrived, the defendant's vehicle was found in the opposite lane
with the engine running. There was significant damage to the
driver's side of the vehicle, the vehicle's bumper was damaged,
and the front passenger's side tire was completely separated
from the vehicle.
The defendant was upset and was pacing back and forth.
When the officer asked the defendant if he needed medical
attention, the defendant became angry and started swearing,
stating, "[D]o I fucking look alright[?] [M]y fucking new car
is destroyed." When the officer shined a flashlight into the
defendant's car, the defendant swore at the officer, yelling,
"[W]hat the fuck are you looking for? . . . I don't fucking
have anything in there[.] [W]hy are you looking in there when
1 No transcript of the admission hearing is available. However,
the facts herein are found in the police report and breath test
report, and are not in dispute between the parties.
2
you should be looking for the asshole that ran me off the
road[?]" The defendant "ripped open" the driver's side door,
stating, "[Y]ou want to fucking search it you asshole, I don't
have shit in there." The defendant then went to his trunk,
stating, "[F]uck that shit[.] I'm getting my jack so I can
change my tire," despite the tire being detached from the car
and the axle being broken. Throughout the interaction, a strong
odor of alcohol came from the defendant's breath.
The officer then asked the defendant to perform field
sobriety tests. In response, the defendant clenched his fists,
advanced on the officer and pushed him, asking the officer if he
"was fucking kidding him." When the defendant advanced on the
officer a second time, the officer grabbed the defendant's arms
and, with the assistance of another officer, gained control of
the defendant, who tensed both of his arms and refused to
cooperate with the officer's instructions. Eventually, the
officers were able to handcuff the defendant and move him into a
police cruiser for transport to the police station.
While proceeding to the station, there was a strong odor of
alcohol inside the cruiser. Throughout the transport, the
defendant screamed, kicked the seat, and made several threats
against the responding officer. For example, the defendant
stated that when he "was bailed out," he was going to kill the
3
officer, his wife, and his children. The defendant also stated
that he was going to "fuck [the officer's] mother."
The defendant's behavior did not moderate at the police
station. After refusing to sign paperwork related to a breath
test, the defendant stated several times that he wanted to "take
the breath test to prove he wasn't drunk and wanted an apology
when it came back negative." The defendant was then
administered a breath test using a Draeger Alcotest 9510
breathalyzer device. The result of the test was 0.14 percent
blood alcohol content, i.e., above the legal limit. See G. L.
c. 90, § 24 (1) (a) (1). As detailed in the breath test report,
the responding officer noticed that the defendant was unsteady
on his feet, the defendant's speech was slurred, and the
defendant's eyes were glassy and bloodshot.
There was no physical or corroborating evidence to suggest
that the defendant was run off the road by another vehicle.
Only one set of tire marks was seen at the location of the
crash. Other officers responding to the scene shortly after the
crash did not see any vehicles matching the description of the
vehicle that the defendant gave. The responding officer stated
in his report that, based on the tire marks, it seemed that the
defendant was traveling too fast for the road conditions, lost
control of his car, traveled up a hill, hit a telephone pole,
and subsequently came back down the hill into the roadway.
4
b. Procedural history. On April 25, 2016, the defendant
was charged in the District Court with OUI, negligent operation
of a motor vehicle, resisting arrest, threatening to commit a
crime, disorderly conduct, and assault and battery on a police
officer. In May 2016, the defendant pleaded guilty to the
charges of resisting arrest and threatening to commit a crime,
and admitted to sufficient facts to warrant a guilty finding on
the charge of OUI. In return, the Commonwealth nol prossed the
remaining charges against the defendant. The defendant did not
then receive any jail time; instead, the OUI charge was
continued without a finding for one year under G. L. c. 90,
§ 24D, the defendant's license was suspended for forty-five
days, and the defendant was sentenced to one year of probation.2
In September of 2021, the defendant moved to "withdraw
[his] plea," under Mass. R. Crim. P. 30 (b), arguing that newly
discovered evidence showed egregious government misconduct by
OAT with respect to the management and handling of the device
used to test his blood alcohol level. The defendant argued that
had he known of such evidence there is a reasonable probability
that he would not have admitted to sufficient facts as to the
OUI charge or pleaded guilty to the other charges, and instead
would have proceeded to trial. After a nonevidentiary hearing,
2 The defendant did receive jail time in 2017 after he violated
probation and a guilty finding entered on the OUI charge.
5
on August 18, 2022, the motion judge, who also presided over the
defendant's pleas and admission, denied the defendant's motion.
The defendant appealed the denial. Briefing and argument
in this court were stayed pending resolution in the Supreme
Judicial Court of Hallinan, 491 Mass. 730, which addressed
fundamentally similar issues regarding the conduct of OAT with
respect to the Alcotest device, and the consequences for
criminal proceedings in which certain breathalyzer evidence was
relied on. Hallinan has now been decided, and the court ruled,
among other things, that due to government misconduct regarding
the Draeger Alcotest 9510 breathalyzer device, breathalyzer
evidence obtained from this device prior to April 18, 2019, was
inadmissible, and that any conviction where such evidence was
relied on is subject to being revisited, utilizing the two-
pronged test articulated in Commonwealth v. Scott, 467 Mass.
336, 346 & n.5 (2014), citing Ferrara v. United States, 456 F.3d
278, 290 (1st Cir. 2006) (Scott-Ferrara test). The question
before us is whether the judge was required to grant the
defendant's motion to withdraw his pleas and admission in light
of the court's reasoning in Hallinan, supra at 733-751.
2. Discussion. A motion for a new trial under Mass. R.
Crim. P. 30 (b) is the proper vehicle to challenge the validity
of a plea and an admission to sufficient facts. Hallinan, 491
Mass. at 744. "A motion to vacate an admission to sufficient
6
facts is treated as a motion for a new trial." Commonwealth v.
Muniur M., 467 Mass. 1010, 1011 (2014).3 "A judge may grant the
defendant's motion only if it appears that justice may not have
been done" (quotations and citation omitted). Commonwealth v.
Furr, 454 Mass. 101, 106 (2009).
Under the two-pronged Scott-Ferrara test, "[t]o prevail on
a claim that government misconduct induced a defendant to admit
to sufficient facts, the defendant must show both [(1)] that
egregiously impermissible conduct . . . by government agents
. . . antedated the entry of his [or her] plea and [(2)] that
the misconduct influenced his [or her] decision to plead guilty
or, put another way, that it was material to that choice"
(quotations omitted). Hallinan, 491 Mass. at 744-745, quoting
Scott, 467 Mass. at 346. Under the second prong of the Scott-
Ferrara test, the defendant must demonstrate a reasonable
probability that he would not have pleaded guilty had he known
of OAT's misconduct. See Hallinan, supra at 750. When
considering the second prong, the motion judge evaluates whether
it would have been rational to reject the plea deal under the
3 Because an admission to sufficient facts to warrant a finding
of guilty "exposes a defendant to some of the same collateral
consequences as a guilty plea," we treat the admission the same
as a guilty plea for purposes of this discussion. Hallinan, 491
Mass. at 731 n.1.
7
totality of the circumstances in the defendant's individual
case.4 See id.; Scott, 467 Mass. at 356.
"We review the denial of a motion to withdraw a guilty plea
to determine whether there has been a significant error of law
or other abuse of discretion" (citation omitted). Commonwealth
v. Lastowski, 478 Mass. 572, 575 (2018). "Particular deference
is to be paid to the rulings of a motion judge who served as the
[plea] judge in the same case" (citation omitted). Commonwealth
v. Sylvester, 476 Mass. 1, 6 (2016).
As noted, the motion judge's decision here predates
Hallinan, but the judge's analysis is not inconsistent with
Hallinan's reasoning. In Hallinan, 491 Mass. at 731, 749-751,
755, the Supreme Judicial Court reversed the denial of a
defendant's motion to withdraw her admission to sufficient facts
of OUI, second offense, after concluding that she satisfied both
prongs of the Scott-Ferrara test. As to the first prong, the
4 To evaluate the second prong of the Scott-Ferrara test, five
factors are to guide the analysis:
"(1) whether evidence of the government misconduct could
have detracted from the factual basis used to support the
guilty plea, (2) whether the evidence could have been used
to impeach a witness whose credibility may have been
outcome-determinative, (3) whether the evidence is
cumulative of other evidence already in the defendant's
possession, (4) whether the evidence would have influenced
counsel's recommendation as to whether to accept a
particular plea offer, and (5) whether the value of the
evidence was outweighed by the benefits of entering into
the plea agreement."
Hallinan, 491 Mass. at 750, quoting Scott, 467 Mass. at 355.
8
Supreme Judicial Court concluded that defendants who pleaded
guilty to OUI based on breath test results from a Draeger
Alcotest 9510 breathalyzer device obtained before April 18,
2019, are entitled to a conclusive presumption "that the first
prong of the Scott-Ferrara test is satisfied, and the existence
of egregious government misconduct that antedated the
defendant's plea has been established." Id. at 755, citing
Scott, 467 Mass. at 346. See Ferrara, 456 F.3d at 290-291.
Such defendants may proceed on motions to withdraw guilty pleas
"without having to establish egregious government misconduct in
each case." Hallinan, supra at 731.
There is no dispute that the defendant here is entitled to
the Hallinan conclusive presumption as to prong one. See
Hallinan, 491 Mass. at 749-750. The question in this appeal,
accordingly, centers on whether the motion judge's denial was
erroneous as to prong two, the prejudice prong. The defendant
points out that the Hallinan court found the prejudice prong
satisfied, but in our view, Hallinan is distinguishable on its
facts.
Hallinan, 491 Mass. at 732, involved a stop at a sobriety
checkpoint. The defendant Hallinan was not involved in an
accident, nor was she seen operating her vehicle erratically.
Id. At the checkpoint troopers noted that Hallinan's eyes were
red and glassy, an odor of "intoxicating liquor" was coming from
9
her vehicle, and her speech was slurred. Id. Hallinan "seemed
dazed" and admitted to consuming three alcoholic drinks. Id.
Hallinan performed a series of field sobriety tests but was
unable to complete them successfully. Id. Hallinan was then
administered an Alcotest 9510 breath test, and the results
showed a blood alcohol content of 0.23 percent. Id.
Hallinan subsequently admitted to sufficient facts to
support a finding of guilty of OUI, second offense, the only
charge she faced. Hallinan, 491 Mass. at 732. Following
Hallinan's admission, the matter was continued without a finding
for two years, Hallinan was placed on probation, and her
driver's license was suspended for two years. Id.
Hallinan thereafter moved to withdraw her admission to
sufficient facts, claiming that her admission resulted from
government misconduct related to the breathalyzer device used to
test her blood alcohol content. Hallinan, 491 Mass. at 732-733.
Though the motion judge found that defendant Hallinan satisfied
the second prong of the Scott-Ferrara test, the judge denied the
motion due to Hallinan not showing a nexus between government
misconduct involving the breathalyzer device and her case, the
first prong of the test. Id. at 731-733, 751. Importantly, on
appeal the Supreme Judicial Court found no error in the motion
judge's determination that Hallinan satisfied the prejudice
prong. Id. at 750-751. The court agreed that leaving aside the
10
breath test result, "the disposition that [Hallinan] received
was not so favorable that the benefits of the plea outweighed
the value of the [breathalyzer] evidence." Id. at 751.
Applying the Scott-Ferrara test to the facts here, we
discern no abuse of discretion in the motion judge's denial. In
contrast to the court's conclusion in Hallinan, 491 Mass. at
750-751, here the motion judge concluded: (1) that the evidence
against the defendant was "overwhelming" and (2) that "the plea
was strategically effective for the defendant." Both
conclusions were well grounded in the facts, and together, they
support the determination that the defendant did not demonstrate
a reasonable probability that he would not have admitted to
sufficient facts or pleaded guilty had he known of OAT's
misconduct.
First, as noted above and unlike in Hallinan, 491 Mass. at
750-751, here the evidence of guilt was very powerful, not just
on the OUI charge but on the other charges as well. Cf. id. at
733 ("To establish OUI, the Commonwealth may proceed on a theory
of impairment [impaired ability to operate] or on a theory of a
per se violation [operating with a (blood alcohol content) of
0.08 percent or greater]"). In Hallinan, supra at 750, aside
from the breath test result, the evidence of impairment was
based on what the court described as "a fairly brief interaction
between [Hallinan] and the troopers and her statement that she
11
had had three drinks." Here, in contrast, the defendant had
been involved in a very serious accident (his car was
undriveable), with no physical evidence that any other vehicle
was involved. The responding officer was unable to perform
field sobriety tests because the defendant, on being asked to
perform the tests, charged at and pushed the officer. Indeed,
the defendant's continuous aggressive and irrational behavior
was evidence of the defendant's impairment. The defendant
yelled at the officer, including stating that he was going to
change a tire despite the axle being completely broken. And the
defendant continued his bizarre and aggressive behavior during
his transit to the police station and booking, which included
making several graphic and detailed threats against the
responding officer and his family.
Moreover, the defendant was unsteady on his feet, had
slurred speech, and had glassy and bloodshot eyes. Throughout
the interaction, a strong odor of alcohol emanated from the
defendant. All of this evidence is important to the first and
third guiding factors in examining the prejudice prong under the
Scott-Ferrara test -- in this case the breathalyzer evidence was
not critical to the Commonwealth's case, but was cumulative of
other, very strong evidence from which a jury could find that
the defendant was intoxicated. See Hallinan, 491 Mass. at 750.
12
Second, and perhaps more importantly, is that the
defendant's plea, including his admission to the OUI charge,
resulted in significant charge concessions that greatly
benefitted the defendant (the fifth factor of the Scott-Ferrara
test). See Hallinan, 491 Mass. at 750. Unlike in Hallinan,
supra at 731, 751, here the Commonwealth dismissed three
additional charges when the defendant offered to admit to
sufficient facts supporting a conviction of OUI -- assault and
battery on a police officer, negligent operation of a motor
vehicle, and disorderly conduct. These charges carried
significant potential penalties. The charge of assault and
battery on a police officer carried a minimum sentence of ninety
days' imprisonment with a maximum of two and one-half years, see
G. L. c. 265, § 13D, and the charge of negligent operation
carried a minimum sentence of two weeks' imprisonment, with a
maximum of two years along with a sixty-day license suspension,
see G. L. c. 90, § 24 (2) (a), (c). The evidence as to these
charges was also very strong (and unaffected by any issues as to
the breathalyzer evidence), and either charge could have
resulted in jail time, which the defendant initially avoided
through his pleas and admission. Additionally, here, the
defendant's license was suspended for forty-five days,
considerably less than the two-year suspension in Hallinan,
supra at 731, 752.
13
In short, the evidence against the defendant here was
considerably stronger than in Hallinan (including on the non-OUI
charges), and the defendant here received a significantly more
beneficial plea disposition. The motion judge, who was also the
plea judge, properly weighed these factors in denying the
defendant's motion, as it would not have been rational for the
defendant to reject the plea deal and go to trial under the
circumstances here.
The motion judge did not abuse his discretion in concluding
that the defendant had not shown that "justice may not have been
done." Mass. R. Crim. P. 30 (b).
Order denying motion to
withdraw guilty pleas and
admission to sufficient
facts affirmed.
By the Court (Green, C.J.,
Neyman & Englander, JJ.5),
Assistant Clerk
Entered: February 29, 2024.
5 The panelists are listed in order of seniority.
14