Commonwealth v. Rivera

1

COMMONWEALTH v. ABIDAN RIVERA

No. 22-P-362

Appeals Court of Massachusetts

May 5, 2023

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0

The defendant was arrested and charged with two counts of open and gross lewdness, in violation of G. L. c. 272, § 16 after he exposed himself to two children multiple times at a store in Saugus. The defendant later pleaded guilty to both counts in District Court. Five years later, the defendant filed a motion to vacate one of the guilty pleas, which was denied. On appeal, the defendant argues that the denial of his motion to vacate was an abuse of discretion because he committed only one continuous incident of exposing himself and he should have been convicted of only one count. Concluding that the judge did not abuse his discretion in denying the motion to vacate, we affirm.

Background.^[1]

On November 11, 2016, two children, ages seven and eleven reported to the police that the defendant had exposed his penis to them while they were in a store in Saugus. The children and their mother indicated that the defendant had followed the children throughout the store, pulled his shorts down, and showed them his genitals "several times while they were in the store." The police spoke to the defendant, who admitted that he was not wearing underwear and "believed that at one point he had crouched down to look at some shoes and while adjusting his shorts, his genitals may have been exposed to the two children." The police arrested the defendant and charged him with two counts of open and gross lewdness, in violation of G. L. c. 272, § 16. On August 31, 2017, the defendant admitted that the above facts had happened and pleaded guilty to both counts of open and gross lewdness. On December 23, 2021, the defendant filed a motion to vacate one of his guilty pleas from the Saugus incident. The motion was denied, and this appeal followed.

Discussion.

"A defendant's motion for a new trial that seeks to withdraw a guilty plea is addressed to the plea judge's sound discretion, and we review the judge's decision for abuse of discretion or clear error of law." Commonwealth v. Hart, 467 Mass. 322, 324 (2014). At a plea hearing, the judge shall "make findings as to . . . whether there is an adequate factual basis for the charge[s]." Mass. R. Crim. P. 12 (c) (5), as amended, 489 Mass. 1501 (2022). "The plea judge need not determine that the defendant is guilty of the crime[s] charged, but 'only whether the evidence which [the judge] had heard, plus any information [the judge] has obtained in the plea hearing, is sufficient, when considered with reasonable inferences which may be drawn therefrom, to support the charge[s] to which the defendant is offering a plea of guilty.'" Commonwealth v. Donald, 101 Mass.App.Ct. 383, 385 (2022), quoting Commonwealth v. Armstrong, 88 Mass.App.Ct. 756, 758 (2015).

In the police report, the officers wrote that the defendant was "charged with two counts of 272/16 Open and Gross Lewdness, one count for each victim." We agree with the defendant that this reason for charging the defendant with two counts was erroneous. As determined by this court in Commonwealth v. Botev, 79 Mass.App.Ct. 281, 288 (2011), a defendant may be convicted only once for each act of open and gross lewdness, regardless of the number of victims involved in each incident, because G. L. c. 272, § 16, "routinely is applied in a manner consistent with the view that the unit of prosecution is conduct-based and not victim-based." We reasoned that a victim-based approach could lead to absurd results; for example, a person who runs naked onto the field at Fenway Park could be charged with 37,000 counts of open and gross lewdness. Id. at 288-289.

Following this reasoning, the defendant urges us to arrive at the same result we did in Botev and vacate one of the defendant's guilty pleas. He argues that, like in Botev, 79 Mass.App.Ct. 289, here "[t]he only conceivable rationale for the two separate convictions is the one we . . . reject, i.e., that there were two victims." On this point, we disagree. Although the police made an error in why they initially charged the defendant with two counts of open and gross lewdness, the defendant did not move to dismiss the charges for lack of probable cause, see Commonwealth v. Humberto H., 466 Mass. 562, 566 (2013), and in fact, pleaded guilty to both charges.

Regardless of the number of victims and why police initially charged the defendant with two counts, the...