By the Court (Wolohojian, Carhart & Kinder, JJ.), Clerk
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
The defendant appeals from the denial of his motion to withdraw his guilty pleas. We affirm
Background. This case has a long procedural history. In 2001, the defendant was indicted for trafficking in cocaine in violation of G. L. c. 94C, § 32E(b)(4), as appearing in St. 1992, c. 396, §§ 1-3, possession of a firearm, and defacing a firearm, in each case while being an habitual offender. Years of pretrial litigation ensued.
On August 2, 2012, the Legislature enacted the Crime Bill, St. 2012, c. 192. See Commonwealth v. Galvin, 466 Mass. 286, 287 & n.3 (2013). Section 23 of the bill reduced the mandatory minimum sentence for a violation of § 32E(b)(4) from fifteen years to twelve. Section 48 extended the benefits of the Crime Bill's reduced sentences to "any person incarcerated on the effective date of this act[,]" St. 2012, c. 192, § 48, who was serving a mandatory minimum sentence under a "prior iteration" of § 32E(b)(4). Galvin, supra.
On April 5, 2013, after this court reversed the allowance of one of the defendant's three motions to suppress, see Commonwealth v. Colon, 80 Mass. App. Ct. 162 (2011), the defendant pleaded guilty to a lesser charge of trafficking in violation of G. L. c. 94C, § 32E(b)(3). The defendant also pleaded guilty to the firearm offenses. He, plea counsel, and the Commonwealth negotiated a twelve to thirteen-year sentence on the trafficking conviction, which, prior to enactment of the Crime Bill, had a minimum mandatory sentence of ten years. The defendant received two-year sentences on the remaining convictions, to be served concurrently with the sentence for trafficking. By agreement, the habitual offender indictments were nolle prossed.
Pursuant to § 22 of the Crime Bill, the minimum mandatory sentence was reduced to eight years.
Four months later, in August, 2013, the Supreme Judicial Court held in Galvin that the Crime Bill's reduced mandatory minimum sentences apply to defendants "who committed an offense prior to the effective date of the reduction, but whose conviction and sentencing did not occur until after that effective date." Galvin, supra at 286. This includes the defendant. In July, 2014, the defendant moved to withdraw his guilty pleas and for a new trial, arguing that his pleas were not voluntary because, had he known that the minimum mandatory sentence under § 32E(b)(3) was eight years instead of ten, he would not have agreed to a twelve to thirteen-year sentence. On October 2, 2014, following an evidentiary hearing, the judge who had taken the defendant's plea made detailed findings on the record and denied the defendant's motion. Among her findings was that, pursuant to Department of Correction policy, the defendant is currently receiving the benefits of the Crime Bill and is eligible for parole in eight years.
Discussion. 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). Such a motion may be granted "if it appears that justice may not have been done." Rule 30(b). "The motion is addressed to the sound discretion of the judge," whose disposition will not be reversed "unless it is manifestly unjust, or unless the plea colloquy was infected with prejudicial constitutional error" (citations omitted). Commonwealth v. Correa, 43 Mass. App. Ct. 714, 716 (1997), and cases cited.
The defendant does not argue that the judge abused her discretion in denying his motion to withdraw his pleas, and we see no error in her rejection of the defendant's claim that justice was not done. His argument, that he would not have accepted a twelve to thirteen-year sentence with a ten year mandatory minimum if he had known that the Crime Bill's provisions would be retroactive to him, ignores the fact that, at the time of the plea, Galvin had not been decided. Therefore, the minimum mandatory sentences explained to the defendant were correct. The judge found that the defendant "wanted a sentence of ten years to ten years and a day" because "[t]hat's what he thought was fair[,]" that "there was a negotiated reduction in the charge" to accomplish this result, and that the agreed-upon plea "did comport with justice being done pursuant to [r]ule 30 (b)." The defendant does not challenge these findings. In light of his current eligibility for parole in eight years instead of ten, the defendant has failed to demonstrate "the slightest prejudice from the asserted error," Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 55 (1997), and we see no "credible reason" for allowing the defendant to withdraw pleas of guilty to crimes committed in 2001, "which outweighs the risk of prejudice to the Commonwealth." Commonwealth v. DeMarco, 387 Mass. 481, 486 (1982).
Order denying motion for new trial affirmed.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 1, 2016.