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15-P-1262                                                Appeals Court

                  COMMONWEALTH    vs.   LARON WALLACE.


                              No. 15-P-1262.

            Hampden.       April 13, 2017. - July 28, 2017.

         Present:      Kafker, C.J., Grainger, & Massing, JJ.1


Controlled Substances. Constitutional Law, Plea, Conduct of
     government agents, Sentence. Due Process of Law, Plea,
     Sentence. Practice, Criminal, Plea, New trial, Conduct of
     government agents, Sentence, Affidavit.



     Indictments found and returned in the Superior Court
Department on April 20, 2011.

     A motion to withdraw a plea of guilty was heard by Tina S.
Page, J.


     Sara A. Laroche for the defendant.
     Benjamin Shorey, Assistant District Attorney, for the
Commonwealth.


     KAFKER, C.J.      The defendant, Laron Wallace, appeals from

the denial of his motion to withdraw his guilty plea to

possession with intent to distribute a Class B substance, G. L.

     1
       Justice Grainger participated in the deliberation on this
case prior to his retirement.
                                                                      2


c. 94C, § 32A(c).   He argues that the motion judge abused her

discretion in denying the motion because of the Commonwealth's

misconduct in a prior case of his involving the chemist Sonja

Farak, which came to light after the guilty plea was entered in

this case.   Although Farak was not the chemist in this case, the

defendant contends that her misconduct in the prior case casts

doubt upon the justice of this plea because he considered the

concurrent sentences he received in the two cases to be

interrelated.   Essentially he contends that because his motion

for a new trial was allowed and his sentence reduced in the

other case involving Farak, the same should occur in this case.

For the reasons that follow, we affirm the denial of the motion

to withdraw the guilty plea.

     Background.    The following facts are undisputed.   On March

2, 2011, the defendant was arrested by Springfield police

executing a search warrant at an apartment located within 100

feet of a public park.     The defendant was observed with a bag

containing thirty-seven rocks of a substance later determined to

be crack cocaine, packaged in smaller individual bags, at his

feet.   A search of the defendant's person revealed $378 in cash

and two cellular telephones.     Police also found two digital

scales in the apartment.     The defendant was indicted in Superior

Court, docket no. 2011-00300 (the 2011 case) on two counts:        (1)

possession with intent to distribute a Class B substance,
                                                                      3


subsequent offense, G. L. c. 94C, § 34A(d); and (2) a drug

violation in a school or park zone, G. L. c. 94C, § 32J,

commonly known as the "school zone" statute.

    At the time of his arrest, the defendant was at liberty on

bail and awaiting trial on docket no. 2010-00514 (the 2010

case), another drug distribution case before the same court.       In

July of 2011, the 2010 case proceeded to a jury trial.     At

trial, Farak, a chemist at the Department of Public Health's

State Laboratory Institute in Amherst (Amherst lab) testified

that the substance seized from the defendant was cocaine.       The

Commonwealth also presented a drug certificate, created and

signed by Farak, stating that the seized substance was cocaine.

The jury convicted the defendant on both counts in that case,

and the trial judge sentenced him to a total of seven years of

incarceration.

    Following his conviction in the 2010 case, the defendant

and the Commonwealth reached a plea agreement in the 2011 case.

The plea bargain provided that (1) the defendant would plead

guilty to possession with intent to distribute a Class B

substance, first offense; (2) the Commonwealth would file a

nolle prosequi on the school zone charge; and (3) the parties

would jointly recommend a sentence of five years to five years

and one day, to be served concurrently with the defendant's

seven-year sentence in the 2010 case.
                                                                     4


    At the plea colloquy for the 2011 case, the Commonwealth

stated that the recommended sentence "is . . . based on what the

Commonwealth believes that we could prove with regard to [the

defendant's] level of involvement in this particular

investigation.   But we feel [five years] is an appropriate

recommendation given [the defendant's] history and the fact that

he's serving the seven-year minimum mandatory sentence."       The

defense counsel told the plea judge that the recommended

sentence would not "disturb" the defendant's seven-year

sentence, but "[would] be within it," and asked the judge to

adopt the recommendation because it gave the defendant "some

light at the end of the tunnel."   The judge expressed concern

that the defendant had committed a new drug offense while

awaiting trial for the previous one, and called the 2011 case a

"case[] that really scream[s] for the imposition of the

subsequent offender portion of the indictment."    The judge

stated that she was adopting the parties' recommendation "[w]ith

great reluctance."   The defendant was sentenced to a five-year

State prison term, "to run concurrent with the sentence imposed

[in the 2010 case]."

    In 2013, after Farak was arrested for tampering with

evidence from the Amherst lab, the defendant filed a motion for

a new trial in the 2010 case, which was granted.   On January 9,

2014, the defendant pleaded guilty on the first count of the
                                                                      5


2010 case, to the lesser-included offense of possession with

intent to distribute a Class B substance.   The Commonwealth

filed a nolle prosequi on the school zone charge.     The defendant

received a new sentence of three and one-half years.     There was

no discussion of the concurrent five-year sentence received in

the 2011 case during the colloquy in the 2010 case.

     Six months later, the defendant filed a motion to withdraw

his guilty plea in the 2011 case, claiming that the intent of

his guilty plea was that he would not have to serve a sentence

any longer than the sentence in the 2010 case.   The defendant

argued that, because his sentence in the 2010 case had been

reduced to three and one-half years following Farak's

misconduct, he would not receive the intended benefit of his

plea in the 2011 case unless that sentence was also reduced

accordingly.   In support of his motion, the defendant attached

an affidavit in which he stated, "had I known of the criminal

activities of the Chemist Sonja Farak, I can't say whether I

would have accepted a plea agreement in [the 2010 case] because

[it] may not have resulted in a conviction."   The motion judge,

who had taken the defendant's plea in the 2011 case, denied the

defendant's motion, reasoning that (1) the defendant did not

establish the requisite nexus, per Commonwealth v. Scott, 467

Mass. 336, 351 (2014), between Farak's misconduct in the 2010

case and his plea in the 2011 case; (2) the defendant's stated
                                                                        6


interpretation of his plea agreement was unreasonable; and (3)

the defendant received the benefit of his plea in that his five-

year sentence in the 2011 case was shorter than the original

seven-year sentence in the 2010 case.

       Standard of review.     We treat a motion to withdraw a guilty

plea as a motion for a new trial pursuant to Mass.R.Crim.P.

30(b), as appearing in 435 Mass. 1501 (2001). Commonwealth v.

Cotto, 471 Mass. 97, 105 (2015).       "Under Mass. R. Crim. P.

30(b), a judge may grant a motion for a new trial any time it

appears that justice may not have been done."       Scott, supra at

344.    "Judges are to apply the standard . . . rigorously, and

should only grant a postsentence motion to withdraw a plea if

the defendant comes forward with a credible reason which

outweighs the risk of prejudice to the Commonwealth."

Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992) (quotations

omitted).    The decision whether to allow a motion to withdraw a

guilty plea is left to the sound discretion of the motion judge.

Commonwealth v. Sherman, 451 Mass. 332, 334 (2008).        We show

particular deference to the rulings of a motion judge who also

presided over the plea colloquy.       See Scott, supra.

       Discussion.   Due process requires that a guilty plea be

intelligently and voluntarily made.       Commonwealth v. Furr, 454

Mass. 101, 106 (2009).       "Typically, a motion to withdraw a

guilty plea will allege a facial defect in the plea procedures,
                                                                      7


but a guilty plea also may be vacated as involuntary because of

external circumstances or information that later comes to

light."2    Cotto, supra at 105 (quotation omitted).    See Scott,

supra at 345.    "A plea may be defective, for example, where it

has been involuntarily induced by government misconduct that

since has been discovered."       Commonwealth v. Ruffin, 475 Mass.

1003, 1003 (2016) (quotation omitted).

     The Ferrara-Scott test.      In Scott, supra at 346, a case

involving the convicted chemist Annie Dookhan, the Supreme

Judicial Court, relying on Ferrara v. United States, 465 F.3d

278 (1st Cir. 2006), defined a two-prong test for analyzing a

defendant's motion to withdraw a guilty plea for governmental

misconduct.    First, the "defendant must show egregious

misconduct by the government that preceded the entry of the

defendant's guilty plea and that occurred in the defendant's

case."     Cotto, supra at 106.   Second, the "defendant must

demonstrate a reasonable probability that he or she would not

have pleaded guilty had he or she known of the government

misconduct."    Ibid.   Due to the "breadth and duration of

Dookhan's malfeasance," the court also "established a special

evidentiary rule" whereby a defendant seeking to withdraw a

guilty plea in a case where Dookhan served as the chemist was

     2
       The defendant does not allege any facial defect in the
plea procedure; he bases his entire claim on the external
circumstances argument.
                                                                    8


"entitled to a conclusive presumption that egregious government

misconduct occurred in the defendant's case," thereby satisfying

the first prong of the analysis.    Ibid. (quotation omitted).

         In Cotto, supra at 107, the Supreme Judicial Court

applied the Ferrara-Scott framework to a case involving Farak's

misconduct.   The court concluded that "Farak's misconduct

constitutes the type of egregious misconduct that satisfies the

first element of the first prong of the Ferrara–Scott analysis"

and that her misconduct "is attributable to the Commonwealth."

Ibid.    The court also distinguished Scott, however, concluding

that "based on the evidence of her misconduct that had been

uncovered thus far," the defendant was not entitled to a

conclusive presumption "that Farak's misconduct occurred in his

case."   Id. at 108.   The court held that the evidence at that

point was insufficient to establish that "Farak's misconduct

constituted a systemic problem," unlike Dookhan's misconduct.

Id. at 108, 110.    The court also ordered further investigation.

     Here, in the defendant's 2011 case, Farak played no role in

the chemical analysis.    Thus it is significantly different from

either the Scott or Cotto cases where either Dookhan or Farak

served as chemists in the cases under review.    The defendant

argues nonetheless that Farak's misconduct in the 2010 case

should be imputed to his 2011 case because, had he known of the

misconduct before pleading guilty in the 2011 case, "he would
                                                                      9


have been aware of the real possibility of acquittal in the 2010

Case or the opportunity to bargain for a lower sentence in that

case . . . and he would not have agreed to a sentence in the

2011 Case that was greater than the sentence in the 2010 Case."

     This argument ignores express language in Scott holding

that "the defendant must demonstrate that the misconduct

occurred in his case."     Scott, supra at 351.3   The court also

stated in Scott that it has "required the existence of such a

nexus in similar cases."     Ibid.   See Commonwealth v. Ellis, 432

Mass. 746, 764-765 (2000) (motion for new trial properly denied

when there was no evidence that police officers who had pleaded

guilty to criminal wrongdoing in another case had engaged in any

such wrongdoing in case on appeal).4     Although we do not rule out

the possibility that governmental misconduct in one case could

contaminate another case, we conclude that Farak's misconduct in

     3
       As explained above, in Scott, supra at 352-354, the court
also stated that that requirement was met whenever Dookhan
served as a chemist in the case given the extent of her
misconduct.
     4
       We note that even in cases where Farak was actually the
chemist in the case being appealed, the court in Cotto was not
prepared at that juncture to adopt the "conclusive presumption
articulated in Scott [in regard to Dookhan] that egregious
misconduct by Farak occurred in his case" because of her
misconduct in other cases. Cotto, supra at 111. We do not,
however, rely on the difference between the Cotto and Scott
standards here, particularly in light of the ongoing
investigation of Farak's misconduct ordered by the Supreme
Judicial Court. Even under the "conclusive presumption" Scott
standard, the defendant would not satisfy the first prong in the
instant case.
                                                                    10


the 2010 case is far too attenuated from the defendant's 2011

case to meet the express egregious misconduct requirements set

out in Scott and Ferrara.    Here, the Commonwealth and the

defense simply considered the effect of the prior sentence in

the 2010 case, which did involve Farak, when recommending the

concurrent sentence in the 2011 case, which did not involve her.

Thus, the first prong of the Ferrara-Scott test is not satisfied

here.

       The defendant also fails to satisfy the second prong.

Under the second prong "the defendant must demonstrate a

reasonable probability that he would not have pleaded guilty had

he known of [the government's] misconduct."     Scott, supra at

354-355.    Here, the defendant does not even aver that, but for

Farak's misconduct, he would not have pleaded guilty in the 2011

case.    See Scott, supra at 356.   "At a minimum, the defendant

must aver to this fact."    Ibid.   Instead, the defendant states

only that he "can't say" whether knowledge of Farak's misconduct

would have changed his decision.     This is too indefinite to

satisfy the second prong of the Ferrara-Scott framework, which

requires the defendant to "demonstrate a reasonable probability

that had he known of [the government's] misconduct, he . . .

would have insisted on taking his chances at trial."     Id. at

358.
                                                                    11


    Even if the defendant's affidavit were more definitive

about his intentions, it would still have been insufficient.

The defendant must not only aver that he would have insisted on

going to trial, but "[a]dditionally, the defendant must

'convince the court that a decision to reject the plea bargain

would have been rational under the circumstances.'"     Id. at 356,

quoting from Commonwealth v. Clarke, 460 Mass. 30, 47 (2011);

Padilla v. Kentucky, 559 U.S. 356, 372 (2010).     Additional

factors that may be relevant to prove that the defendant would

not have pleaded guilty had he known of the governmental

misconduct at the time of his plea "may include whether the

defendant had a substantial ground of defense that would have

been pursued at trial or whether any other special circumstances

were present on which the defendant may have placed particular

emphasis in deciding whether to accept the government's offer of

a plea agreement."    Scott, supra.

    The defendant's affidavit did not suggest any substantial

grounds of defense.   The defendant was found with a bag

containing thirty-seven individually-packaged rocks of crack

cocaine on the floor "directly in front of him."     He had $378 in

cash and two cellular telephones on his person.     Other indicia

of intent to distribute were found in the apartment.

Importantly, Farak's misconduct in the 2010 case was completely

unrelated to the evidence in the 2011 case.
                                                                     12


    As for special circumstances, the defendant relies on the

concurrent nature and claimed interconnection between the two

sentences.     He contends that unless he is permitted to withdraw

his guilty plea, he will have been deprived of the benefit of

his bargain.     "The touchstone for determining whether a

defendant has been improperly denied the advantages he expected

. . . is whether that defendant has reasonable grounds for

reliance on his interpretation of the prosecutor's promise, and

whether the defendant in fact relied to his detriment on that

promise."    Commonwealth v. Parzyck, 41 Mass. App. Ct. 195, 197

(1996), quoting from Commonwealth v. Santiago, 394 Mass. 25, 28

(1985).     Here the defendant received the benefit of his bargain

in the plea deal.     The prosecutor did not promise concurrent

sentences under all circumstances, and expressly relied on the

defendant's prior criminal history.     The defendant agreed to a

sentence that would run concurrently with the seven-year

sentence he was "already" serving.     He received five years,

which was within that sentence, as agreed.     The judge simply

stated that the sentences would run concurrently, and the

defendant made no objection to the sentence in the 2011 case.

The defendant also did not raise the supposed inseparability of

the two sentences when he filed his motion for a new trial in

the 2010 case, pleaded guilty, and received the reduced three

and one-half year sentence.     The defendant's interpretation of
                                                                     13


the plea agreement in the 2011 case as inseparably keyed to the

2010 sentence, regardless of changes to the 2010 sentence and

his criminal history, is therefore untenable.

    Finally, the defendant was aware that the judge had

significant reservations about even accepting the five-year

recommended sentence.   The defendant had "several prior

convictions for the very same charge" and committed the offense

while out on bail for a similar offense.     For these reasons, the

judge accepted the recommended sentence "with great reluctance,"

stating that the case "screame[d]" for more severe punishment.

The judge warned the defendant that she could impose the maximum

penalty, ten years, and that she "could even impose it from and

after" the seven-year sentence he was serving.     The judge,

however, accepted the recommended sentence of five years, to run

concurrently with the seven-year sentence.     The school zone

charge was also nolle prossed.   In these circumstances the

subsequent reduction of the seven-year sentence does not deprive

the defendant of the benefit of this bargain.     We thus conclude

that the judge did not abuse her discretion in denying the

defendant's motion to withdraw his guilty plea.

                                    Order denying motion to
                                      withdraw guilty plea
                                      affirmed.
