Com. v. Haskell

921 N.E.2d 988

76 Mass. App. Ct. 284

COMMONWEALTH v. Robert R. HASKELL.

No. 08-P-2012.

Appeals Court of Massachusetts, Essex.

Argued December 17, 2009.

Decided February 19, 2010.

Debra A. DelVecchio, Salem, for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Present: CYPHER, DREBEN, & MEADE, JJ.

MEADE, J.

More than twenty years after admitting to sufficient facts to warrant his conviction of operating while under the influence of liquor and operating a motor vehicle negligently so as to endanger,¹ the defendant moved to vacate his pleas based on his claim that the judge who accepted them did so without the benefit of a colloquy. The record of the proceeding no longer exists and Justice David T. Doyle, who accepted the plea, has retired (plea judge). The motion was denied, and we affirm, albeit on grounds different from those relied on by the motion judge. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102, 682 N.E.2d 586 (1997). In so doing, we determine that an affidavit from a retired judge may serve to reconstruct the record of a plea proceeding over which he presided, and that the defendant's submissions did not rebut the presumption of regularity of the plea proceeding as reconstructed.

1. Background. On March 16, 1987, the defendant was charged by complaint in the Salem Division of the District Court Department with the motor vehicle offenses already mentioned. At his arraignment the next day, the defendant, represented by counsel, pleaded not guilty and executed a waiver of his right to an initial jury trial.² On April 16, 1987, the defendant appeared before the plea judge, and admitted to sufficient facts to the three counts in the complaint. The plea judge accepted the plea and found the defendant guilty of operating while under the influence of liquor and sentenced him to one year of probation. The negligent operation charge was continued without a finding for six months, and the civil infraction of failure to stop was placed on file at the Commonwealth's request. The defendant's probation terminated on April 25, 1988. The tape recording of the April 16, 1987, proceeding no longer exists.

In December, 2007, the defendant moved for a new trial and to withdraw his 1987 guilty plea based on his claim that the plea judge did not conduct a colloquy to ascertain whether the defendant understood the elements of the charged offenses and whether his admission was voluntary and intelligent. The motion noted that the defendant sought a new trial because the Registry of Motor Vehicles was using his 1987 conviction "as a factor in suspending his driver's license for four years."

In support of his motion for new trial, the defendant submitted his own affidavit as well as those of his plea counsel, Norman A. Erlich, and Stuart I. Rosnick, an attorney who practiced law in Salem. In his own affidavit, the defendant averred basic facts that supported his claim that the plea judge did not conduct a colloquy with him prior to accepting his admission to sufficient facts. He further averred as follows:

"When I appeared before [the plea judge] that day, I was very nervous and everything was happening very fast. I did not understand everything that was happening, except that I did understand the punishment that I was to receive. My appearance before [the plea judge] took just a few minutes.

"I do not recall nor do I believe that the judge spoke with me about the elements of the criminal charges . . . or about whether my plea was freely and voluntarily given. In particular, I was not asked about any promises or threats related to my admission.

"In addition, I do not recall nor do I believe that the judge had a conversation with me about my age, education, mental health, medications, or whether I was under the influence of drugs or alcohol that day.

"The judge did not review my Constitutional rights with me during my plea hearing to ensure that I understood my jury trial right and the other Constitutional rights that I was giving up by offering my plea. In particular, I do not recall and believe that the judge and I did not discuss my right against compulsory self-incrimination, my right to confront my accusers with my attorney's assistance, and the prosecution's burden of proof as to the criminal charges brought against me" (emphases supplied).

In his affidavit, Rosnick stated that although he did not represent the defendant, he had practiced law in the Salem area since 1973, and had "appeared before [the plea judge] on hundreds of occasions." Rosnick averred that prior to the introduction of "green sheets" in 1996,³ "it was not [the plea judge's] practice to conduct full and complete colloquies." Rather, he claimed that "[the plea judge's] practice was to inquire only as to the terms of the plea, and whether the parties" agreed on sentencing. Rosnick further claimed that in July of 2005, he filed a motion for new trial in another case involving a plea accepted by the plea judge in August of 1987. In connection with that case, he spoke with "more than five attorneys who regularly practiced before [the plea judge]" between 1985 and 1990, none of whom could recall a single occasion prior to "1990 when [the plea judge] had a dialogue with a defendant to ascertain the accused's understanding of his or her Constitutional rights, and whether that person's waiver of rights was voluntary and intelligent."

In his affidavit, Erlich, who represented the defendant at the 1987 plea hearing, averred only that he had no "specific memory" of the pleas, was unable to recall any other occasion on which he attended a change-of-plea hearing in front of the plea judge, and was thus unable to comment on the plea judge's "customary sentencing practices in 1987."

In its opposition to the motion for new trial, the Commonwealth argued that given the defendant's lengthy delay, he failed to rebut the presumption of regularity, and that as reconstructed by the affidavit from the plea judge, the defendant's admission was both voluntary and intelligent. In support of its opposition, the Commonwealth submitted an affidavit from the plea judge,⁴ which stated in pertinent part:

"I do not remember this case. Even so, I can attest that at the time I was aware of my obligation to conduct a colloquy with a defendant to determine whether his plea or admission to sufficient facts was knowing, voluntary and intelligent, and to inform him of certain rights. After Duquette⁵ was decided, in 1982, it was my customary practice especially in OUI cases, to conduct such a colloquy before accepting a guilty plea or an admission to sufficient facts. For that purpose, I used a sheet that I believe was provided by Chief Justice Zoll's office. The sheet was on my bench and I used it in both guilty pleas and admissions to sufficient facts.

"I have read the affidavit of attorney Stuart Rosnick. I recall that he appeared before me occasionally, and certainly not as often as the `hundreds of times' that he stated in his affidavit. I also do not recall that Mr. Rosnick ever complained to me about the adequacy of the colloquy that I conducted in any case he might have handled.

"If any attorney or defendant brought to my attention that a colloquy was deficient in any way, I would have remedied it.

"I note in this case that the defendant signed a jury waiver. I would certainly have conducted a jury-waiver colloquy.

"Based on my review of the papers in this case and my customary practice, I have no reason to believe that I did not provide the required colloquy before accepting the defendant's admission to sufficient facts."

After receiving the Commonwealth's opposition, the defendant submitted a supplemental affidavit from Rosnick. In this affidavit, Rosnick identified the five attorneys he mentioned in his first affidavit, who claimed to have been familiar with the plea judge's customary plea practice. Rosnick also provided information regarding three other defendants who, in 2004 and 2005, moved to withdraw guilty pleas that had been accepted by the plea judge between 1986 and 1990. In two of those cases, Rosnick represented the defendants. In both of those cases, the defendants' affidavits in support of their motions to withdraw their guilty pleas contained language identical to the emphasized phrases found in the instant defendant's affidavit. Also, in both of those cases, Rosnick filed nearly identical affidavits of his own, making the same claim regarding the plea judge's practice of not conducting colloquies in such matters, and his claim of having appeared before the plea judge on hundreds of occasions.

Rosnick also submitted affidavits from two other attorneys, which were prepared in 2004, for the third case. The first attorney averred that he had practiced law in Salem since 1985, and until green sheets were created in 1996, he claimed that the plea judge accepted defendants' guilty pleas without conducting a complete colloquy with them regarding their rights. The second attorney, who was counsel to the defendant in the third case, made essentially the same claim.

2. The motion judge's decision. After conducting a nonevidentiary hearing, the motion judge made written findings and denied the motion for new trial. Without making reference to the plea judge's affidavit or to those submitted by the defendant, the motion judge found that "based upon the weight of the evidence presented, [a] finding is made that the defendant was not afforded the prescribed plea colloquy by the [c]ourt when his plea was accepted" (emphasis in original). Despite this finding, the motion judge determined that he "must look at the entire circumstances surrounding the defendant's request for relief" to evaluate "whether there exists a substantial miscarriage of justice." The motion judge then evaluated other extrinsic evidence and determined that the plea was voluntary and intelligent.⁶

In conclusion, the motion judge noted that the...