Commonwealth v. Armstrong

88 Mass.App.Ct. 756

42 N.E.3d 1167

COMMONWEALTH

v.Edward ARMSTRONG.

No. 14–P–1538.

Appeals Court of Massachusetts, Middlesex.

Argued Nov. 6, 2015.

Decided Dec. 18, 2015.

Judith Ellen Pietras, Northampton, for the defendant.

Erin J. Anderson, Assistant District Attorney, for the Commonwealth.

Present: MILKEY, CARHART, & MASSING, JJ.

Opinion

MASSING, J.

The defendant, Edward Armstrong, appeals from the order denying his motion for new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The defendant alleged in his motion that his guilty plea eight years earlier to a charge of armed home invasion was invalid for lack of a factual basis, contrary to the requirements of Commonwealth v. Hart, 467 Mass. 322, 325–326, 4 N.E.3d 1231 (2014), and Mass.R.Crim.P. 12(c)(5)(A), as appearing in 442 Mass. 1511 (2004). Specifically, he claimed that the plea colloquy failed to establish a factual basis for one of the elements of the crime of armed home invasion: that having entered an empty dwelling, he “remain[ed] in such dwelling place knowing or having reason to know that one or more persons are present.” G.L. c.265, § 18C, inserted by St. 1993, c. 333. A Superior Court judge (motion judge) denied the motion without a hearing. Discerning no abuse of discretion or other error of law, see Commonwealth v. Kirwan,

448 Mass. 304, 314, 860 N.E.2d 931 (2007), we affirm.

Background. On September 27, 2006, the defendant pleaded guilty to a five-count indictment charging him with, among other things, armed home invasion. At the same time, he pleaded guilty to three counts in two 2005 indictments arising out of two prior incidents. With respect to one of the prior incidents, the plea judge sentenced the defendant to a State prison term of five to six years on a conviction of assault and battery by means of a dangerous weapon (ABDW), imposed on a “forthwith” basis. G.L. c.279, § 27. The judge imposed State prison sentences of four to five years with respect to two of the convictions associated with the 2006 armed home invasion (assault by means of a dangerous weapon and possession of a firearm without a license), these sentences to run concurrently with each other and with the forthwith sentence for ABDW.

With respect to the armed home invasion guilty plea, although the statutory sentencing range is “imprisonment in the state prison for life or for any term of not less than twenty years,” G.L. c.265, § 18C, the judge sentenced the defendant to a term of probation,¹ to commence after completion of the three concurrent State prison sentences. The remaining charges, including a charge of receiving a stolen motor vehicle associated with the home invasion incident, were placed on file with the defendant's consent.

In July, 2012, while serving his probationary term for the 2006 armed home invasion conviction, the defendant was indicted on a new charge of home invasion as well as armed robbery and other crimes. The plea judge having retired, on April 26, 2013, a second Superior Court judge found the defendant in violation of the terms of his probation based on the new charges. The judge removed from the file the 2006 associated conviction of receiving a stolen motor vehicle and sentenced the defendant to a State prison term of seven to nine years on that charge. The judge continued the defendant's probation on the 2006 home invasion conviction for another five years, to commence after completion of the sentence for receiving a stolen motor vehicle. On May 22, 2013, after a jury trial, the defendant was acquitted on the 2012 indictments.

On June 5, 2014, the defendant filed his motion for a new trial under rule 30(b), alleging for the first time that his 2006 guilty

plea to the charge of armed home invasion was invalid because the Commonwealth failed to lay a factual basis for the charge during the colloquy. The motion judge denied the motion on September 22, 2014.

Discussion. Rule 12(c)(5)(A) of the Massachusetts Rules of Criminal Procedure provides, “A judge shall not accept a plea of guilty unless the judge is satisfied that there is a factual basis for the charge.” The factual basis requirement is distinct from the requirement that a defendant's plea be made voluntarily and intelligently. See Commonwealth v. Hart, 467 Mass. at 325–326, 4 N.E.3d 1231. The intelligence requirement focuses on the defendant's understanding of the charges to which he is pleading guilty. See Henderson v. Morgan, 426 U.S. 637, 645 & n. 13, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) ; Commonwealth v. Colantoni, 396 Mass. 672, 679–680, 488 N.E.2d 394 (1986). The factual basis requirement, by contrast, focuses on the judge being satisfied that the defendant is not pleading guilty to a crime unless there is a “strong factual basis” for the charge. Commonwealth v. DelVerde, 398 Mass. 288, 297, 496 N.E.2d 1357 (1986), quoting from North Carolina v. Alford, 400 U.S. 25, 37–38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). See Commonwealth v. Jones, 60 Mass.App.Ct. 88, 90 n. 2, 799 N.E.2d 601 (2003).

“A judge may not accept a guilty plea ‘unless there are sufficient facts on the record to establish each element of the offense.’ ” Hart, supra at 325, 4 N.E.3d 1231, quoting from DelVerde, supra. However, by pleading guilty, a defendant waives his right to be convicted on proof beyond a reasonable doubt. DelVerde, supra at 292, 496 N.E.2d 1357. Therefore, the factual basis for a guilty plea need not satisfy the standard of review for the denial of a motion for a required finding of not guilty set forth in Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), that is, whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (citation omitted).

Accordingly, a judge accepting a guilty plea “is not required to determine whether the defendant is or is not guilty of the offense charged.” Commonwealth v. Jenner, 24 Mass.App.Ct. 763, 773, 513 N.E.2d 1290 (1987). Rather, a plea judge “need determine only whether the evidence which he had heard, plus any information he has obtained in the plea hearing, is sufficient, when considered with reasonable inferences which may be drawn therefrom, to support the charge to which the defendant is offering a plea of guilty.” Ibid.

As pertinent here, the crime of armed home invasion applies when a defendant “knowingly enters the dwelling place of another

and remains in such dwelling place knowing or having reason to know that one or more persons are present.” G.L. c.265, § 18C. The parties have not cited any published cases, nor are we aware of any, in which the statute has been applied to a defendant who unlawfully entered an empty dwelling and remained there after learning that the resident had returned. The most definitive attempt to define the “remains” element appears in Commonwealth v. Ruiz, 426 Mass. 391, 393, 688 N.E.2d 963 (1998), in which the court in dicta posited that “the Commonwealth would have to establish that, some appreciable time prior to the assault, the defendant remained there, and presumably could have chosen to depart, after coming to know or have reason to know that others were in the dwelling house.”

Here, according to the prosecutor's...