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16-P-1486                                           Appeals Court

              COMMONWEALTH    vs.   KEVIN J. FAHERTY.


                           No. 16-P-1486.

       Middlesex.       December 8, 2017. - April 11, 2018.

             Present:    Sacks, Ditkoff, & Singh, JJ.


Motor Vehicle, Operating under the influence. Evidence, Prior
     conviction, Intoxication, Blood alcohol test. Practice,
     Criminal, Prior conviction, Assistance of counsel,
     Sentence, Required finding. Constitutional Law, Assistance
     of counsel. Due Process of Law, Assistance of counsel,
     Blood alcohol test. Intoxication.



     Complaint received and sworn to in the Woburn Division of
the District Court Department on December 14, 2015.

    The case was tried before David E. Frank, J.


     Tasha Kates for the defendant.
     Gabriel Pell, Assistant District Attorney, for the
Commonwealth.


    DITKOFF, J.     A District Court jury convicted the defendant,

Kevin J. Faherty, of operating under the influence of

intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1).    At a

subsequent jury-waived trial, a District Court judge convicted
                                                                      2


the defendant as a fourth offender.   We are faced with the

question whether a subsequent offense may be based on a prior

conviction for which the defendant was not entitled to (and

presumably did not receive) appointed counsel because the prior

offense carried no risk of incarceration.   Concluding that it

may be, and rejecting the defendant's challenge to the

sufficiency of the evidence, we affirm.

    1.   Background.   At approximately 2:30 P.M. on July 4,

2015, the defendant was injured while riding his motorcycle on

Pond Street in Stoneham.   A Massachusetts State trooper at the

scene of the accident noticed a strong odor of alcohol and later

discovered four unopened nip bottles of Jim Beam bourbon in the

defendant's saddle bag.

    The defendant was transported to a hospital.    Hospital

records recorded that the defendant's serum alcohol level was

359 milligrams per deciliter.   An expert from the Office of

Alcohol Testing at the Massachusetts State Police Crime

Laboratory testified that this was the equivalent of a blood

alcohol level of between .30 percent and .32 percent.

    The defendant testified that the accident was caused by his

hitting something in the road while momentarily distracted.      He

testified that he did not drink any alcohol prior to the

accident but decided to drink six nip bottles of bourbon to dull

the pain while waiting for medical assistance.   The jury
                                                                 3


convicted the defendant on both a theory of impairment and a

theory of having a blood alcohol level of .08 percent or higher.

    At the jury-waived trial on the subsequent offense portion

of the complaint, the Commonwealth presented evidence that the

defendant had received a continuance without a finding for OUI

in District Court in 1989.   The Commonwealth then introduced,

over objection, evidence of two convictions for OUI in New

Hampshire, from 1992 and 2005.   The New Hampshire cases were

prosecuted as first offenses, and the defendant received no

incarceration but instead was fined and had his license revoked.

The judge found the defendant guilty as a fourth offender.

    2.   Prior offenses.   In 1967, the United States Supreme

Court held that convictions obtained in violation of the right

to counsel as established in Gideon v. Wainwright, 372 U.S. 335,

344-345 (1963), may not "be used against a person either to

support guilt or enhance punishment for another offense."

Burgett v. Texas, 389 U.S. 109, 115 (1967).   Accordingly,

convictions obtained in violation of the right to counsel may

not be used to impeach a defendant's credibility, see

Commonwealth v. Saunders, 435 Mass. 691, 694 (2002), or to

determine the length of a defendant's sentence.   See

Commonwealth v. Proctor, 403 Mass. 146, 147 (1988).

    Since 2002, Massachusetts courts have employed a

presumption of regularity (at least regarding post-Gideon
                                                                   4


convictions) that the right to counsel in felony cases was

honored "unless the defendant first makes a showing that the

conviction in issue was obtained without representation by, or

waiver of, counsel."   Saunders, 435 Mass. at 696.   We have

applied this presumption to misdemeanors that carry the

possibility of incarceration, such as first and second offense

OUI, see Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 905

(2010), and to out-of-State convictions.   See Commonwealth v.

Cuevas, 87 Mass. App. Ct. 205, 207-208 (2015).

     Here, the defendant was unable to rebut the presumption of

regularity; the New Hampshire court documents say nothing either

way about counsel, and the defendant testified merely that he

did not remember.   The presumption of regularity, however, can

carry the Commonwealth only so far.   As the defendant points

out, there is (and was) no possibility of incarceration for a

New Hampshire first offense of OUI.   See N.H. Rev. Stat. Ann.

§ 265-A:18(I)(a) (2014); N.H. Rev. Stat. Ann. § 625:9(IV)(b)

(2016).1   As in Massachusetts, see Lavallee v. Justices in the

Hampden Superior Ct., 442 Mass. 228, 241 & n.15 (2004), New

Hampshire recognizes no right to appointed counsel in a criminal

proceeding in which there is no possibility of incarceration.


     1 For the relevant statutes in effect at the time of the
earlier offenses, see N.H. Rev. Stat. Ann. § 265:82(I) (2004);
N.H. Rev. Stat. Ann. § 265:82-b(I)(a) (2004).
                                                                    5


State v. Weeks, 141 N.H. 248, 250 (1996).    Accord State v.

Westover, 140 N.H. 375, 377-379 (1995).     Accordingly, although

we may presume that the defendant's right to retain counsel at

his own expense, see Commonwealth v. Cote, 74 Mass. App. Ct.

709, 711 (2009), was properly honored, see Saunders, 435 Mass.

at 694, 696, the presumption of regularity gives us no

confidence that the defendant was offered appointed counsel in

New Hampshire.   Indeed, the presumed regularity would be that

the defendant was not offered appointed counsel.

     We must, therefore, address the question whether a

conviction, properly obtained without the provision of appointed

counsel because there was no possibility of incarceration, may

be used in a subsequent prosecution for a crime that carries the

possibility of incarceration.   The United States Supreme Court

has squarely held that this is permissible under the Sixth

Amendment to the United States Constitution.    Nichols v. United

States, 511 U.S. 738, 748-749 (1994).2    The Court observed that


     2 Indeed, the United States Supreme Court went further and
allowed the use of an uncounseled conviction that resulted in no
incarceration, even if incarceration had been a possibility.
Nichols, 511 U.S. at 740 n.1. We need not reach this issue.
Cf. State v. Young, 863 N.W.2d 249, 281 (2015) (Iowa
constitution prohibits use of prior conviction in this
circumstance). We observe that Commonwealth v. Barrett, 3 Mass.
App. Ct. 8, 9 (1975), found error in such a circumstance. That
opinion, however, was based solely on Federal law and cannot
survive the teachings of Nichols. The question thus remains
open.
                                                                     6


enhancement statutes "do not change the penalty imposed for the

earlier conviction," and that repeat-offender laws punish "only

the last offense committed by the defendant."   Id. at 747.    The

Court reasoned that the "logical consequence" of the

constitutional validity of an uncounseled conviction is that it

may be used to "enhance the sentence for a subsequent offense."

Id. at 747.   Many, though by no means all, of our sister States

have followed suit.3

     Absent direction from the Supreme Judicial Court, we see no

reason why art. 12 of the Massachusetts Declaration of Rights

would forbid the use of a constitutionally valid conviction in a

subsequent case.   It is easy to understand why a conviction

obtained in violation of a defendant's right to counsel may not

return to enhance a defendant's sentence in the future.   The

convictions here, however, were obtained in full accordance with


     3 See, e.g., People v. Nguyen, 46 Cal. 4th 1007, 1022-1023
(2009); State v. Brooks, 89 Conn. App. 427, 435, 437 (2005);
People ex rel. Glasgow v. Kinney, 970 N.E.2d 506, 508-509
(Ill.), cert. denied, 568 U.S. 944 (2012); Morphew v. State, 672
N.E.2d 461, 465 (Ind. Ct. App. 1996); State v. Tims, 302 Kan.
536, 541-543 (2015); State v. Cook, 706 A.2d 603, 607 (Me.
1998); People v. Reichenbach, 459 Mich. 109, 123-127 (1998);
Ghoston v. State, 645 So. 2d 936, 938-940 (Miss. 1994); State v.
Pike, 162 S.W.3d 464, 471-472 (Mo. 2005); State v. Spotted
Eagle, 316 Mont. 370, 375, 379 (2003); State v. Wilson, 17 Neb.
App. 846, 856 (2009); State v. Woodruff, 124 N.M. 388, 399
(1997); Glaze v. State, 366 S.C. 271, 274-275 (2005); State v.
Porter, 164 Vt. 515, 521 (1996); State ex rel. Webb v. McCarty,
208 W. Va. 549, 552-553 (2000). But see State v. Kelly, 999
So. 2d 1029, 1052-1053 (Fla. 2008); State v. Bode, 144 Ohio
St. 3d 155, 161 (2015).
                                                                    7


the defendant's constitutional rights.    In our view, it would be

strange if art. 12 created classes of convictions, some of which

are permitted but then may not be acknowledged in the next case.

    There can be little doubt that a conviction provides more

confidence when the defendant was represented by counsel at

trial.   Nonetheless, a conviction obtained without counsel

because the defendant was found not indigent but declined to

retain counsel is fully admissible.   Commonwealth v. Delorey,

369 Mass. 323, 325-326, 329-331 (1975).   Similarly, a conviction

where the defendant chose to represent himself is fully

admissible.   See McMullin, 76 Mass. App. Ct. at 905.   Respect

for the defendant's constitutional rights, see Commonwealth v.

Martin, 425 Mass. 718, 720-721 (1997), not increments in

reliability, must be the touchstone here.

    Moreover, the contrary rule would pose some serious

problems for the administration of justice.   Crimes such as

disorderly conduct, G. L. c. 272, § 53(b), and shoplifting,

G. L. c. 266, § 30A, where a first offense is punishable only by

a fine, could never be prosecuted for a subsequent offense

punishable by incarceration, unless by some happenstance the

defendant retained counsel or the prosecution was joined with

other, more serious charges.   The presumption of regularity

would lose much of its force if courts were required to go

beyond the presumption and determine whether the regularity in
                                                                    8


each case resulted in a conviction that counted in the future.

Seeing no constitutional basis to require such a regime, we

conclude that the New Hampshire convictions here were properly

considered as predicates for the defendant's conviction as a

fourth offender.

    3.    Sufficiency of the evidence.   When reviewing the denial

of a motion for a required finding of not guilty, "we consider

the evidence introduced at trial in the light most favorable to

the Commonwealth, and determine whether a rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt."   Commonwealth v. Oberle, 476 Mass. 539, 547

(2017).   "The inferences that support a conviction 'need only be

reasonable and possible; [they] need not be necessary or

inescapable.'"   Commonwealth v. Waller, 90 Mass. App. Ct. 295,

303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707,

713 (2014).   Here, the Commonwealth was required to "prove that

the defendant (1) physically operated a vehicle; (2) 'on a

public way or place to which the public has a right of access;

and (3) had a blood alcohol content percentage of .08 or greater

or was impaired by the influence of intoxicating liquor.'"

Commonwealth v. AdonSoto, 475 Mass. 497, 509 (2016), quoting

from Commonwealth v. Zeininger, 459 Mass. 775, 778, cert.

denied, 565 U.S. 967 (2011).   Only the third element is

contested by the defendant.
                                                                    9


    A breathalyzer test performed within a "reasonable time" of

operation is admissible to show a defendant's blood alcohol

level at the time of operation.     Commonwealth v. Colturi, 448

Mass. 809, 816 (2007).   Three hours is presumptively a

"reasonable time," subject to the "facts and circumstances in

particular cases."   Id. at 816-817.    Moreover, "a breathalyzer

test result showing a blood alcohol level of .08 or above,

administered within a 'reasonable time' of the operation of a

motor vehicle, as that phrase was defined in Colturi, is

sufficient to prove a defendant guilty beyond a reasonable doubt

. . . under the 'per se' theory."    Commonwealth v. Dacosta, 85

Mass. App. Ct. 386, 389 (2014).     These teachings apply as well

when the blood alcohol level was measured by a blood test,

rather than by a breathalyzer.    Commonwealth v. Douglas, 75

Mass. App. Ct. 643, 652 (2009).

    Here, the hospital blood test revealed a serum alcohol

level that was the equivalent of a blood alcohol level of

between .30 percent and .32 percent.     Although the portion of

the medical records admitted at trial does not record the time

that the defendant's blood was drawn, the results appear in the

medical records prior to the description of the doctor's

examination at 4:38 P.M. (approximately two hours after the

accident).   In light of this evidence, and the commonsense idea

that the routine drawing of blood for a motor vehicle accident
                                                                   10


victim would not ordinarily wait for the conclusion of a

doctor's examination, the trier of fact was well justified in

finding that the blood alcohol level was measured within a

"reasonable time" of the defendant's operation.     See

Commonwealth v. Fernandes, 478 Mass. 725, 739 (2018) (jury may

draw reasonable inferences).     Accordingly, the evidence was

sufficient to support the defendant's guilt under a theory that

he had a blood alcohol level of .08 or greater.     See Dacosta, 85

Mass. App. Ct. at 389.

    During the defendant's case, the defendant testified that

he consumed the alcohol between the time of the accident and the

time of the blood draw.     The jury, however, were entitled to

disbelieve his testimony.     See Commonwealth v. Ross, 92 Mass.

App. Ct. 377, 381 (2017).     Accordingly, the evidence remained

sufficient to support the defendant's conviction at the close of

all evidence.

    Because the jury specified that they convicted the

defendant under both the theory that he had a blood alcohol

level of .08 or greater and on a theory of impairment, we need

find sufficient evidence on only one of the two theories to

affirm the conviction.    See Commonwealth v. Mercado, 466 Mass.

141, 155 (2013).   Accordingly, we need not discuss whether the

evidence was also sufficient on a theory of impairment.

                                      Judgment affirmed.
