Com. v. Sherman

885 N.E.2d 122

451 Mass. 332

COMMONWEALTH v. Larry H. SHERMAN, Jr.

SJC-10034

Supreme Judicial Court of Massachusetts, Bristol.

Argued March 6, 2008.

Decided May 2, 2008.

David J. Barend for the defendant.

Tara Blackman, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, CORDY, & BOTSFORD, JJ.

SPINA, J.

Nearly ten years after he had pleaded guilty to rape and assault and had been sentenced, the defendant, Larry H. Sherman, Jr., moved for a new trial. The motion was granted on the ground that his guilty pleas had not been made intelligently. A judge in the Superior Court concluded that the record of the hearing where he changed his pleas to guilty "does not demonstrate that the defendant was advised of the elements of the offense of rape, nor that the defendant admitted facts sufficient to display he understood the elements of the offense independent of any explanation from the court or from counsel." The Commonwealth appealed, and the Appeals Court reversed the judge's order. Commonwealth v. Sherman, 68 Mass.App.Ct. 797, 864 N.E.2d 1241 (2007). We granted the defendant's application for further appellate review. We reverse the order granting a new trial.

Background. The defendant was indicted in January, 1993, for the crimes of aggravated rape and assault with intent to commit murder. On May 12, 1993, following plea negotiations with the Commonwealth, he offered to plead guilty to so much of the indictment charging aggravated rape as alleged rape and to so much of the indictment charging assault with intent to commit murder as alleged simple assault. A judge in the Superior Court held a hearing on the defendant's offer to change his pleas. The prosecutor at that hearing stated that the defendant and the Commonwealth had agreed on a disposition and that the defendant would plead guilty to assault and rape. The prosecutor further stated that, if the case went to trial, he would expect to prove the following facts: on the night the alleged crimes occurred, residents heard screams coming from a nearby cemetery; when police officers arrived at the scene, they observed a young woman running away from the cemetery; she was naked from the waist down and had a T-shirt tied around her neck; she identified the defendant as the one who had "picked her up"; and the defendant had taken her to the cemetery and "forcibly raped her when she declined to have sex with him voluntarily" in exchange for money. The judge asked the defendant if this recitation of facts was true, and the defendant said that it was.

The judge then explained to the defendant the rights that one loses when one pleads guilty to a crime. The defendant indicated that no one had induced him to plead guilty by way of promises or offers of any kind and that he was satisfied that his attorney, in advising him to plead guilty, was acting only in his best interests. The defendant further indicated that he had understood everything that the judge had said about the plea procedure and indicated that he had no questions for the judge. The defendant then pleaded guilty to rape and assault. Conformably with the agreed-on recommendation, the judge imposed a sentence of from six to ten years with six months to be served on the rape indictment, and the assault conviction was placed on file. The judge deemed that the defendant, having spent time in custody, already had served those six months. The balance of the sentence was to be suspended for a three-year period.¹

On October 7, 1999, after a different judge found that the defendant had violated the terms of his probation, he was ordered to serve the balance of his sentence. In a motion for a new trial filed on April 14, 2003, the defendant sought to withdraw his original pleas of guilty to the charges of rape and assault on the ground that his guilty pleas had not been made intelligently and voluntarily. The judge who conducted the original plea hearing had retired. A third judge concluded that the defendant's change of plea was voluntary but not intelligent, and he granted the defendant's motion for a new trial.

Discussion. "A motion for new trial is the appropriate device for attacking the validity of a guilty plea." Commonwealth v. Huot, 380 Mass. 403, 406, 403 N.E.2d 411 (1980). The motion "is addressed to the sound discretion of the trial judge." Commonwealth v. Russin, 420 Mass. 309, 318, 649 N.E.2d 750 (1995). However, we may reverse a judge's order granting a new trial where the judge committed "a significant error of law or other abuse of discretion in allowing a defendant's motion for a new trial." Commonwealth v. Martin, 427 Mass. 816, 817, 696 N.E.2d 904 (1998).

The parties dispute whether the judge erred in concluding that the defendant's pleas were not intelligent. The defendant argues that the pleas were not intelligent because, he states, he did not admit to facts that necessarily implied that he had sexual intercourse with the victim. The Commonwealth, on the other hand, argues that the pleas were intelligent because, it states, the prosecutor's recitation of facts put the defendant on sufficient notice of the essential elements of rape.

A defendant must receive "real notice of the true nature" of the charge for which he intends to make a guilty plea. Commonwealth v. Sullivan, 385 Mass. 497, 509, 432 N.E.2d 684 (1982), quoting Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), and cases cited. A guilty plea generally may be withdrawn or nullified if the defendant did not make the plea voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Commonwealth v. Sullivan, supra at 504, 432 N.E.2d 684. "[A] guilty plea is involuntary and cannot serve as an intelligent admission of guilt if the defendant is ignorant of a critical element of the offense and makes no factual statement or admission necessarily implying that element." Commonwealth v. Colantoni, 396 Mass. 672, 678-679, 488 N.E.2d 394 (1986), citing Henderson v. Morgan, supra at 646, 96 S.Ct. 2253. A guilty plea generally is voluntary and an intelligent admission of guilt "if the record shows affirmatively ... either: (1) an explanation by the judge of the elements of the crime; or (2) a representation that counsel has explained to the defendant the elements he admits by his plea; or (3) defendant's statements admitting facts constituting the unexplained elements" (citations omitted). Commonwealth v. Colantoni, supra at 679, 488 N.E.2d 394. See Commonwealth v. Correa, 43 Mass.App.Ct. 714, 717, 686 N.E.2d 213 (1997). In this appeal, we are concerned with the third method for showing the intelligence of the defendant's guilty pleas as it relates to one critical element of rape, namely, the element of sexual intercourse² or unnatural sexual intercourse.³ G.L. c. 265, § 22 (b).

In the present case, as the Appeals Court correctly noted, the defendant relied solely on the contemporaneous record of the plea hearing to meet his burden to show that the pleas were not made intelligently. Commonwealth v. Sherman, 68 Mass.App.Ct. 797, 800, 864 N.E.2d 1241 (2007). In particular, he argued that his admission to facts stated by the prosecutor did not constitute the elements of rape. Our inquiry as to the intelligence of the pleas therefore is limited to whether the defendant's admissions at the plea hearing did constitute the elements of rape and, specifically, whether they constituted the one element of rape disputed by the parties, namely, sexual or unnatural sexual intercourse. See Commonwealth v. Foster, 368 Mass. 100, 108 nn. 6-7, 330 N.E.2d 155 (1975); Commonwealth v. Nolan, 19 Mass.App.Ct. 491, 492, 475 N.E.2d 763 (1985).

Rape is not merely a technical legal term but also a widely known layman's term. The legal meaning of rape implies sexual or unnatural sexual intercourse. G.L. c. 265, § 22 (b). The common meaning of rape (where it involves sexual conduct) implies sexual intercourse. Webster's New Collegiate Dictionary 949 (1980) (rape is "sexual intercourse with a woman by a man without her consent and chiefly by force or deception" [emphasis added]). American Heritage Dictionary of the English Language 1081 (1970) (rape is "[t]he crime of forcing a female to submit to sexual intercourse " [emphasis added]). Random House Dictionary of the English Language 1191 (1973) (rape is "the act of physically forcing a woman to have sexual intercourse" [emphasis added]). Pocket Oxford American Dictionary of Current English 659 (2002) (rape is "the act of forcing another person to have sexual intercourse "[emphasis added]). The court should not ignore the common meaning of the word just because the word also has a more technical legal meaning. Each of these meanings at least implies sexual intercourse.⁴

The defendant's admissions at his plea hearing strongly support the conclusion that he engaged in sexual or unnatural sexual intercourse with the victim. In particular, the defendant admitted that he "forcibly raped [the victim] when she declined to have sex with him voluntarily" for money, a statement that suggests that he made her do involuntarily what she would not do voluntarily, namely, have sex with him.⁵ In addition, he admitted that the victim ran away screaming and naked from the waist down, an admission that provides still further support for the conclusion that the defendant had sexual or unnatural sexual intercourse because the victim's fear and flight were in line with what one might expect from someone who had just been raped and because, being partially undressed, the victim was in a position where the defendant more easily could have engaged in sexual or unnatural sexual intercourse with her.⁶

As indicated in the Appeals Court's thoughtful dissent, an admission to a crime generally will not function in itself as an admission to all of the elements of that crime. Commonwealth v. Sherman, supra at...