Commonwealth v. Lorquet

90 Mass.App.Ct. 1118

65 N.E.3d 31 (Table)

COMMONWEALTH

v.Kerry LORQUET.

No. 15–P–1401.

Appeals Court of Massachusetts.

December 2, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from the order denying his motion to withdraw his guilty plea and for a new trial. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). We affirm.

Background. In 2012, a criminal complaint issued from the District Court charging the defendant with (1) possession with intent to distribute a class B substance, subsequent offense, (2) possession of a class B substance, subsequent offense, and possession of a class D substance.² Thereafter, count 1 was amended by deleting the "subsequent offense" portion of the charge. On May 13, 2014, the defendant pleaded guilty to count 1. The plea was supported by a colloquy and by a "tender of plea or admission & waiver of rights" form (plea form), signed by the defendant and his counsel, which the defendant stated that he had read and gone over with his lawyer. The Commonwealth then recited the following facts:

"On January 15, 2012 an officer observed a vehicle driving down the road that committed a minor motor vehicle infraction.

"The vehicle was pulled over. The [d]efendant before you today was in the front passenger seat of that vehicle.

"As the officer approached he observed the driver as well as the [d]efendant both looking at the center console, and observed the [d]efendant move his left hand from the center console area and put it in his left jacket pocket.

"The officer searched the vehicle and did observe two plastic baggies in the center console, both containing blue pills that through his training and experience he identified as Oxycodone ; those being a[c]lass B controlled substance. Those pills were sent to the lab and did come back as being a[c]lass B drug, Oxycodone."

The defendant admitted that he "committed the acts that were described and attributed to [him]." The judge accepted the plea, amended the charge to possession of a class B substance, and sentenced the defendant to one year of supervised probation.³ Counts 2 and 3 were dismissed, and the defendant was found not responsible for the civil infraction.

Seven months later, the defendant moved to withdraw his guilty plea on the basis that it was not knowing and intelligent. He argued that the judge failed to review with him the elements of the crime, and that the facts recited by the prosecutor did not establish the elements of possession. The same judge who had taken the defendant's plea denied the motion because:

"[w]hen he presented his plea, [d]efendant swore (§ 2 of plea form) that he was aware of the ‘nature and elements' of the charges; and his attorney, a highly qualified and respected member of the bar, certified (§ 3 of the plea form) that he had explained to [d]efendant the legal rights [and] consequences referenced in § 2. Further, during the colloquy, [d]efendant swore that he had read and gone over the plea form with his attorney; that he understood its contents; and that he was satisfied with the time [and] attention his attorney had devoted to his case. The plea hearing also featured the Commonwealth's reciting facts it was prepared to prove, and [d]efendant's admission to committing them. Two of the three avenues anticipated by Colantoni were pursued; and the Court concluded then, as it does now, that there were facts sufficient to warrant a finding of guilt, and that [d]efendant knowingly, freely [and] voluntarily waived his right to trial."

The defendant appeals.

Discussion. A motion to withdraw a guilty plea is treated as a motion for a new trial, Commonwealth v. Scott, 467 Mass. 336, 344 (2014), and may be granted "if it appears that justice may not have been done," Mass.R.Crim.P. 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." Commonwealth v. Correa, 43 Mass.App.Ct. 714, 716 (1997) (citations omitted), and cases cited.

"A plea is intelligently made only when the defendant can admit to facts entered on the record that establish each element of the crime with which he is charged." Commonwealth v. Sherman, 68 Mass.App.Ct. 797, 810 (2007) (Trainor, J., dissenting), S.C., 451 Mass. 332 (2008). The crime of possession—in this case constructive possession—could be established by circumstantial evidence that the defendant had "knowledge coupled with the ability and intention to exercise dominion and control" over the pills found in the center console. Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989) (quotation omitted). Mere presence in the vehicle is insufficient. Commonwealth v. Romero, 464 Mass. 648, 653 (2013).

Here, "the defendant's presence in the vehicle [was] augmented by additional inculpatory evidence" that he moved his hand from the center console where the pills were found to his jacket pocket. Id . at 654. This fact supports a "reasonable inference[ ]" that the defendant was making sure that his pocket was empty of the pills he had just placed in the console. Commonwealth v. Armstrong, 88 Mass.App.Ct. 756, 758 (2015), quoting from Commonwealth v. Jenner, 24 Mass.App.Ct. 763, 773 (1987). Evidence of "attempts to conceal or dispose of contraband ... permit an inference of unlawful possession," Commonwealth v. Whitlock, 39 Mass.App.Ct. 514, 519 (1995), and the defendant's admitted movements "provide[ ] a link" to the drugs found in the console, Commonwealth v. Romero, supra at 656. The defendant's admission to "facts...