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SJC-12079

              COMMONWEALTH   vs.   WAYNE L. RUFFIN.


                         August 9, 2016.


Controlled Substances. Practice, Criminal, Plea, New trial,
     Conduct of government agents, Presumptions and burden of
     proof. Evidence, Guilty plea, Certificate of drug
     analysis, Presumptions and burden of proof.



     On July 26, 2007, the defendant, Wayne L. Ruffin, pleaded
guilty to two counts of distribution of cocaine, in violation of
G. L. c. 94C, §§ 32A and 32E. Two other counts, alleging drug
violations near a school zone or park, in violation of G. L.
c. 94C, § 32J, were dismissed. Thereafter, on October 3, 2007,
the substances were tested at the William A. Hinton State
Laboratory Institute, and Annie Dookhan was one of the two
"assistant analysts" who signed the certificates of drug
analysis (drug certificates). Years later, after Dookhan's
misconduct had been discovered, see generally Commonwealth v.
Scott, 467 Mass. 336 (2014), the defendant unsuccessfully moved
for a new trial, seeking to vacate his guilty pleas on the
ground of Dookhan's misconduct. The defendant appeals from the
denial of that motion, as well as his renewed motion for a new
trial. We affirm.

     Consistent with due process considerations, a guilty plea
may be accepted only when it is "intelligently and voluntarily
made." Scott, 467 Mass. at 345, quoting Commonwealth v. Furr,
454 Mass. 101, 106 (2009). A plea may be defective, for
example, where it has been "involuntarily induced by government
misconduct that since has been discovered." Scott, supra at
345-346. In this case, the defendant contends that his pleas
were not "knowing and voluntary" because he was unaware at that
                                                                2


time of the pleas of Dookhan's misconduct or that she would
eventually test the alleged controlled substances in his cases.
The motion judge properly rejected the argument. Where
governmental misconduct is alleged in circumstances such as
these, we have applied the two prong-analysis of Ferrara v.
United States, 456 F.3d 278, 290 (1st Cir. 2006). See Scott,
supra at 346. The first prong has three parts. "[T]the
defendant first must show that egregious government misconduct
preceded the entry of his guilty plea and that it is the sort of
conduct that implicates the defendant's due process rights"
(emphasis added). Id. at 347. Under the second part, the
defendant must establish that the "egregious misconduct was
undertaken 'by government agents' prior to the entry of the
defendant's guilty plea" (emphasis added). Id. at 348. The
third part requires a defendant to show a nexus between the
government misconduct and the defendant's own case. Id. at 350.
If all three parts of the first prong are satisfied, the second
prong of Ferrara requires a defendant to particularize the
governmental "misconduct to his decision to tender a guilty
plea."1 Id. at 354.

     Scott involved a drug certificate that, unlike the
certificate in this case, antedated the defendant's guilty plea.
Because of the unprecedented scope of Dookhan's misconduct, we
focused on and recognized that the requisite nexus might be
"impossible for the defendant to show." Scott, 467 Mass. at
351. For that reason, we held that "in cases in which a
defendant seeks to vacate a guilty plea under Mass. R. Crim. P.
30 (b)[, as appearing in 435 Mass. 1501 (2001),] as a result of
the revelation of Dookhan's misconduct, and where the defendant
proffers a drug certificate from the defendant's case signed by
Dookhan on the line labeled 'Assistant Analyst,' the defendant
is entitled to a conclusive presumption that egregious
government misconduct occurred in the defendant's case." Id. at
352. Underlying that presumption, however, is the assumption
that the misconduct evidenced by the certificate antedated the
guilty plea.

     Where a drug certificate signed by Dookhan postdates the
defendant's guilty plea, the underlying assumption of Scott is
absent. The Scott presumption exists to relieve defendants of
"costly administrative burden[s]," see Scott, 467 Mass. at 353,
because "the only reliable and available basis . . . to assess
whether Dookhan's wrongful conduct touched the defendant's case"

     1
       The defendant did not file his own affidavit in support of
his motion to vacate his guilty pleas.
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is contained in the drug certificate. Id. Where certificates
indicate that Dookhan analyzed the drugs in the defendant's case
after the plea proceedings were concluded, even presuming
misconduct occurred at that time, her involvement cannot be said
presumptively and retroactively to have induced the defendant's
plea months earlier. For the presumption articulated in Scott
to apply, it is incumbent on the defendant to establish that the
presumptive governmental misconduct antedated the plea. See id.
(where certificate antedated plea, "furnishing a drug
certificate signed by Annie Dookhan as an assistant analyst in
the defendant's case satisfies the defendant's evidentiary
burden to establish each element of the first prong of the
Ferrara analysis"). In this case, the defendant failed to
satisfy his evidentiary burden with respect to the first prong
of Ferrera.

     The serendipitous assignment of Dookhan as one of two
chemists who tested the alleged controlled substances in the
defendant's cases -- after his pleas had been accepted and he
had been sentenced -- does not give rise to a presumptive basis
for vacating the guilty pleas. There being no basis to find
that any governmental misconduct occurred in his case prior to
the acceptance of his pleas, or that any governmental misconduct
rendered the defendant's guilty pleas unintelligent or
involuntary, the motion judge properly declined to vacate the
guilty pleas.

                                  Order denying motion for
                                    a new trial affirmed.

     Alexandra H. Deal for the defendant.
     Laurie S. Yeshulas, Assistant District Attorney, for the
Commonwealth.
