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14-P-1111                                              Appeals Court

              COMMONWEALTH    vs.   ANTONIO WILLIAMS.


                           No. 14-P-1111.

        Plymouth.       November 17, 2015. - May 12, 2016.

            Present:    Cypher, Trainor, & Rubin, JJ.


                 Practice, Criminal, Plea, Sentence.



     Indictments found and returned in the Superior Court
Department on July 26, 2010, and April 22, 2011.

     Motions to withdraw guilty pleas, filed on June 3, 2013,
and January 30, 2014, were heard by Paul A. Chernoff, J.,
Special Judicial Magistrate, and an order affirming the proposed
order of the Special Judicial Magistrate was entered by Frank M.
Gaziano, J.


     Jason Howard for the defendant.
     Laurie Yeshulas, Assistant District Attorney, for the
Commonwealth.


    CYPHER, J.    The defendant, Antonio Williams, appeals from

the denial of his motions to withdraw his guilty pleas pursuant

to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001).

The offenses were set forth in two sets of indictments that
                                                                   2


charged unrelated gun and drug crimes.   The defendant argues

that because the guilty pleas were based, in part, on drug tests

performed by Annie Dookhan at the Hinton State Laboratory

Institute (Hinton laboratory), the subsequent discovery of

Dookhan's pervasive wrongdoing requires the reversal of the

convictions.1

     The first set of indictments (the gun case) arose after the

police responded to a report of domestic violence at the home of

the defendant's girl friend on April 14, 2010.    Upon their

arrival, the police were informed by the girl friend that the

defendant had threatened her.   While there, police also saw

loose ammunition and a loaded firearm, both of which the

defendant admitted were his.    The defendant was charged with

unlawful possession of a firearm (G. L. c. 269, § 10[a]);

unlawful possession of a loaded firearm (G. L. c. 269, § 10[n]);

unlawful possession of ammunition without an FID card (G. L.

c. 269, § 10[h]); and threat to commit a crime (G. L. c. 275,

§ 2).    The first indictment, charging unlawful possession of a

firearm, also alleged that the defendant previously had been

convicted of three predicate offenses, namely, armed masked

robbery as a juvenile, possession with intent to distribute


     1
       For a detailed description of the investigation of the
Hinton laboratory, the indictment of Annie Dookhan, and
Dookhan's guilty pleas, see Commonwealth v. Scott, 467 Mass.
336, 337-342 (2014).
                                                                     3


marijuana and "crack" cocaine on June 21, 2006 (No. 0615CR4295)

(the 2006 drug charges), and possession with intent to

distribute a class B substance on July 29, 2007 (No.

0715CR005623) (the 2007 drug charges),2 thus subjecting him to

enhanced sentencing as an armed career criminal under G. L.

c. 269, § 10G(c) (the ACC offense).

     On March 4, 2011, while the defendant was out on bail on

the gun charges, the police executed a search warrant in the

third-floor apartment in Brockton where he was living with his

mother, her boy friend, and his younger brothers.     During the

search, police found what they believed to be cocaine residue in

an area in the defendant's bedroom that suggested drugs were

being prepared for packaging and sale.    They also found fifteen

bags of suspected marijuana and nineteen bags of suspected crack

cocaine, as well as a scale, gloves, bags, scissors, and

numerous plastic bags in the bedroom.    On a tray in the kitchen,

police found nine twisted bags of what are alleged to be

Oxycontin pills as well as suspected crack cocaine.    According

to the police report, the defendant said that if the weight of

the purported crack cocaine in combination with the substance

found in his bedroom "was less than trafficking weight then he



     2
       The defendant pleaded guilty to both the 2006 and 2007
drug charges on September 25, 2007, in the Brockton Division of
the District Court Department.
                                                                   4


would admit the crack cocaine and the pills in the kitchen were

his."   The house was within 1,000 feet of a public school.

    As a result of the search, a second set of indictments was

returned (the drug case) charging the defendant with possession

of cocaine with intent to distribute, second or subsequent

offense, G. L. c. 94C, § 32A(c) and (d); possession of oxycodone

with intent to distribute, second or subsequent offense, G. L.

c. 94C, § 32A(c) and (d); and possession of marijuana with

intent to distribute, second or subsequent offense, G. L.

c. 94C, § 32C.   Each indictment included a count charging that

the defendant had committed that particular offense in a school

zone, G. L. c. 94C, § 32J.   The second or subsequent offense

portion of each indictment identified the defendant's

convictions on the 2006 drug charges as the prior offense.

    A plea hearing was held on January 26, 2012.   At the outset

of the hearing, the prosecutor explained that she was willing to

reduce the ACC offense from a "level III" (three predicate

offenses) to a "level II" (two predicate offenses), thereby

reducing the defendant's exposure from a minimum mandatory

sentence of fifteen years and a maximum sentence of twenty years

to a minimum mandatory sentence of ten years and a maximum

sentence of fifteen years.   See G. L. c. 269, § 10G(b) and (c).

She further indicated that she would seek a ten- to twelve-year

aggregate sentence on the level II ACC offense and the related
                                                                   5


charges and an additional aggregate sentence of no more than ten

years on the drug counts.   The prosecutor sought consecutive

sentences because the defendant had committed the drug offenses

while he was out on bail on the gun charges.   See G. L. c. 279,

§ 8B.3   For his part, the defendant requested concurrent

sentences and a reduction in the prosecutor's offer of ten to

twelve years on the level II ACC offense to ten years.

     Upon inquiry from the judge, the prosecutor confirmed that,

in the event the judge intended to impose concurrent rather than

consecutive sentences, she would nonetheless maintain her offer

to reduce the ACC charge to a level II offense and would not

increase the ten- to twelve-year sentence recommendation.

Against this backdrop, the defendant pleaded guilty to the

charges with the ACC charge reduced to a level II offense.

     The prosecutor recited the facts of both cases including

that testing had confirmed the nature of the substances

underlying the drug case.   Certificates of analysis showed that


     3
       General Laws c. 279, § 8B, as appearing in St. 1994,
c. 68, § 8, provides, in pertinent part:

     "If a defendant on release [on bail or personal
     recognizance] commits a crime, the sentence imposed for
     [that] crime shall run consecutively to the earlier
     sentence for the crime for which he was on release."

The requirement of consecutive sentences can be avoided however,
if a defendant is first sentenced for the crime committed while
out on bail and then sentenced for the charge on which he made
bail. Commonwealth v. Hickey, 429 Mass. 1027 (1999).
                                                                   6


the contraband had been analyzed at the Hinton laboratory by

Annie Dookhan, who had signed the certificates of analysis as

either the primary analyst or the sole analyst.   At the

conclusion of the plea hearing, the judge accepted the pleas and

sentenced the defendant to an aggregate sentence of not less

than ten nor more than twelve years in State prison on the gun

charges and a concurrent aggregate term of seven and one-half

years in State prison on the drug offenses.

    Between June, 2013, and January, 2014, in light of problems

that surfaced at the Hinton laboratory and with Annie Dookhan,

in particular, the defendant filed a motion in both the gun case

and the drug case to withdraw his guilty pleas and for a new

trial.   See generally Commonwealth v. Torres, 470 Mass. 1020,

1021 (2015).   Simultaneously, in the Brockton Division of the

District Court Department, the defendant challenged his

convictions on the 2006 and 2007 drug charges that constituted

the enhancement offenses on grounds that Annie Dookhan analyzed

the drugs underlying the 2006 charges and another chemist in the

same laboratory analyzed the drugs at issue in the 2007 charges.

    After a hearing, a special magistrate appointed to preside

over criminal proceedings in connection with cases relating to

the Hinton laboratory issued proposed rulings and orders denying

the defendant's motions to withdraw his guilty pleas in the case
                                                                   7


at bar.4   See Commonwealth v. Charles, 466 Mass. 63, 75-76

(2013).    The defendant appealed, and a judge of the Superior

Court affirmed the orders of the magistrate denying the

defendant's motions.

     The magistrate found that while the gun case against the

defendant was strong, the drug case was not.    He reasoned that

"if [the defendant] had been facing solely the [drug] case,"

"[t]he defendant may reasonably have chosen to go to trial if he

had known he had a chance of successfully suppressing the drug

tests" and that "he could have used information of Dookhan's

misconduct to impeach her testimony and undermine the veracity

of the tests that she performed as a primary chemist."    The

magistrate concluded, however, that "it would not have been

rational for the defendant to forgo the plea bargain to proceed

to trial and risk a mandatory from and after sentence" on the

drug case.   The magistrate acknowledged that "[i]f one or both

of [the enhancement] charges is ultimately resolved in his

favor, then the defendant has grounds to seek further redress in

this court."

     The defendant argues on appeal that because Dookhan's

misconduct would have resulted in the likely reversal of the

drug charges, the specter of an on-and-after drug sentence did

     4
       The only evidence introduced at the hearing was the police
report (included in the record on appeal) related to the
execution of the search warrant in the present drug case.
                                                                    8


not actually hang over him.    After the initial appellate briefs

were submitted in this case, the defendant filed a reply brief

stating that the order denying his motion to withdraw his guilty

plea on the 2007 enhancement offenses had been affirmed by this

court, and that further appellate review had been denied by the

Supreme Judicial Court.   See Commonwealth v. Williams, 87 Mass.

App. Ct. 1106 (2015).   After oral argument, defense counsel

further informed us in a letter pursuant to Mass.R.A.P. 16(l),

as amended, 386 Mass. 1247 (1982), that upon remand from this

court, see Commonwealth v. Williams, 86 Mass. App. Ct. 1114

(2014), his motion to withdraw his guilty plea on the 2006 drug

charges, which had served both as a basis for the armed career

criminal enhancement on the firearm possession charge and the

second and subsequent offense drug charges in the present

matter, had been allowed in the trial court.    Anticipating this

result, the defendant argued in his brief and at oral argument

that reversal of one of the three original predicate offenses

underlying the ACC count would render the subsequent plea to the

reduced charge no "bargain."   According to the defendant, the

plea would have garnered him nothing, demonstrating that there

is a reasonable probability that he would have refused to plead

guilty and instead would have insisted on going to trial.

    Discussion.   "A motion for a new trial pursuant to Mass. R.

Crim. P. 30(b) is the proper vehicle by which to seek to vacate
                                                                      9


a guilty plea. . . .     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.    A motion for a new trial is thus

committed to the sound discretion of the judge. . . .     Rule

30(b) encourages judges to make such findings of fact as are

necessary to resolve the defendant's allegations of error of

law.    The judge is the final arbiter on matters of credibility,

and the judge's findings of fact are to be accepted if supported

by the evidence. . . .    We review an order [denying] a new trial

motion to determine if the judge committed a significant error

of law or other abuse of discretion."     Commonwealth v. Scott,

467 Mass. 336, 344 (2014) (citations and quotations omitted).

Here, because a Superior Court judge affirmed the order of the

special magistrate, we treat the magistrate's findings and

rulings as those of the judge and apply the same standard of

review.    See Commonwealth v. Charles, 466 Mass. at 75-76, 84, 87

(magistrates conferred with power to conduct hearings on

postconviction matters and to make proposed findings and rulings

but ultimate decision whether to allow or deny motion must be

made by judge).

       "In establishing that a guilty plea is offered

intelligently and voluntarily by the defendant, the judge must

ensure that the plea has been made with an understanding of the

nature of the charge and the consequences of the plea.     Brady v.
                                                                      10


United States, 397 U.S. 742, 748 [1970].       Huot v. Commonwealth,

[363 Mass.] 91, 100-101 [1973]."       Commonwealth v. Russin, 420

Mass. 309, 317-318 (1995), quoting from Commonwealth v. Morrow,

363 Mass. 601, 605 (1973).       Where, as here, the plea is

challenged on grounds of Dookhan's misconduct, the test to

assess whether these requirements have been met begins with a

conclusive presumption that the misconduct was egregious and

that its occurrence was attributable to the Commonwealth (prong

one), Commonwealth v. Scott, 467 Mass. at 352, and then requires

a defendant to show that "the misconduct influenced his decision

to plead guilty or, put another way, that it was material to

that choice" (prong two), id. at 346, quoting from Ferrara v.

United States, 456 F.3d 278, 290 (1st Cir. 2006).       See

Commonwealth v. Scott, supra at 346 n.5, 354-355.       Materiality

turns on proof of "a reasonable probability that [the defendant]

would not have pleaded guilty had he known of Dookhan's

misconduct" and that he would have insisted on going to trial.

Id. at 355.       This analysis requires that we consider the

"totality of the circumstances" and the "full context of the

defendant's decision to enter a plea agreement."       Id. at 355,

357.5       See Ferrara v. United States, 456 F.3d at 294 ("Because a


        5
       In Scott, the court enumerated factors     that may be
relevant to a showing under the second prong,     but made clear
that additional factors not identified in the     following list may
also be considered in a particular case; (1)      whether evidence
                                                                  11


multiplicity of factors may influence a defendant's decision to

enter a guilty plea, a court attempting to answer this question

must use a wide-angled lens").   In addition, "[t]he reasonable

probability analysis must be based on the actual facts and

circumstances surrounding the defendant's decision at the time

of the guilty plea in light of the one hypothetical question of

what the defendant reasonably may have done if he had known of

Dookhan's misconduct."   Commonwealth v. Scott, 467 Mass. at 357.

    Here, the ACC charge with three predicate offenses was the

pivotal indictment against the defendant.   Plea negotiations

proceeded on the basis that this indictment carried a minimum

mandatory sentence of fifteen years and a maximum sentence of

twenty years.   During negotiations, the Commonwealth indicated a

willingness to reduce this charge to include only two predicate

offenses, thereby reducing the defendant's exposure to a minimum

mandatory sentence of ten years and a maximum sentence of


of the misconduct could have detracted from the factual basis
for the plea; (2) whether the evidence could have been used to
impeach an outcome-determinative witness; (3) whether the
evidence was cumulative; (4) whether the evidence would have
influenced counsel's advice as to whether to accept a plea
offer; (5) whether the value of the evidence was outweighed by
the benefits of the plea offer; (6) whether the defendant had a
substantial ground of defense that could have been pursued at
trial; (7) whether there were any special circumstances on which
the defendant may have placed particular emphasis in deciding
whether to accept a plea offer; and (8) whether the defendant
was facing additional charges and whether the drug charges were
a minor component of an over-all plea agreement. 467 Mass. at
355-357, citing Ferrara v. United States, 456 F.3d at 294, and
Commonwealth v. Clarke, 460 Mass. 30, 46-48 (2011).
                                                                   12


fifteen years.   An agreement was reached, which resulted in the

defendant's plea to the reduced charge in exchange for a

sentence of ten to twelve years of incarceration on the gun

charges.   That the punishment imposed on the remaining drug

charges was subordinated to this sentence only further evidences

that the ACC indictment was the driving force behind the plea.

     In this posture, the subsequent allowance of the

defendant's motion to withdraw his guilty plea on the 2006 drug

charges -- one of the two predicate offenses underlying the ACC

conviction -- on grounds of egregious governmental misconduct by

Dookhan may have been material to the defendant's decision to

plead guilty in the present matter.6   To the extent the

defendant's plea resulted from a desire to avoid the risk of a

twenty-year prison term, a sentence that would not have been

     6
       We note that a distinctly different situation is presented
when a defendant's conviction is obtained as the result of a
trial and a sentence is imposed under an enhancement count that
includes a predicate offense that is later successfully
challenged. In such cases, because the defendant has not
relinquished any rights to go to trial, there can be no impact
upon the validity of the conviction from an incorrectly included
predicate offense that is related solely to the sentencing phase
of the proceedings. In such instances, courts have simply
vacated so much of the enhancement count as includes the
offending predicate offense and remanded the case for
resentencing. See Commonwealth v. Eberhart, 461 Mass. 809, 820
(2012); Commonwealth v. Colon, 81 Mass. App. Ct. 8, 26 (2011).
See also Commonwealth v. Leggett, 82 Mass. App. Ct. 730, 735
(2012) (because judge's sentencing scheme for multiple counts is
"typically an integrated plan," subtraction of one or more
offenses may disrupt entire scheme and require case to be
remanded to trial judge for reconsideration of entire sentencing
structure).
                                                                  13


permitted after the predicate offense was vacated, the

defendant's decision to plead guilty was not a correctly

informed one.   See, e.g., Commonwealth v. Lenhoff, 796 A.2d 338,

342-343 (Pa. Super. 2002) (where plea negotiations were flawed

from outset by incorrect sentencing parameters, defendant was

entitled to withdraw plea).   Cf. Commonwealth v. Roberts, 472

Mass. 355, 364 (2015) ("The failure to provide information . . .

to a defendant with respect to a matter as significant as the

possibility of a [G. L.] c. 123A commitment may provide a basis

for withdrawing the plea, so long as the defendant shows that he

or she was prejudiced by the omission").    A mistake regarding

the direct consequences of pleading guilty, including the

maximum possible sentence of the crime charged, undermines the

validity of a guilty plea.    See Commonwealth v. Rodriguez, 52

Mass. App. Ct. 572, 576-580 (2001); Commonwealth v. Shindell, 63

Mass. App. Ct. 503, 506-507 (2005); Commonwealth v. Murphy, 73

Mass. App. Ct. 57, 59 (2008); Mass.R.Crim.P. 12(c)(3)(B), as

appearing in 442 Mass. 1511 (2004).    These concerns are only

exacerbated by the fact that the drug charges that were included

in the plea in the present matter are also directly implicated

by Dookhan's misconduct.

    The defendant's appeal, however, is premature.     As the

magistrate made clear, if a conviction underlying the ACC count

were invalidated, it would provide grounds to seek further
                                                                   14


redress in the trial court.   The defendant has not done so but

has instead come directly to this court.   Whether the defendant

would have insisted on going to trial in these circumstances is

a fact-intensive determination that must in the first instance

be evaluated in the trial court.   This determination has never

had an evidentiary airing, nor has the Commonwealth had an

opportunity to consider the new information regarding the

predicate drug offense from 2006 and what, if any, other offer

it would have made.   See Commonwealth v. Scott, 467 Mass. at

355-357.   Cf. Commonwealth v. Gordon, 82 Mass. App. Ct. 389,

401-402 (2012) (hearing necessary to determine whether counsel

adequately advised defendant of deportation risk); Commonwealth

v. Henry, 88 Mass. App. Ct. 446, 456-457 (2015) (factual

development necessary to resolve question concerning guilty plea

where defendant risked deportation).

    We vacate the orders of the Superior Court affirming the

denial of the defendant's motions to withdraw his guilty pleas

and remand the case for further proceedings and findings in

accordance with this opinion and the reasoning in Commonwealth

v. Scott, 467 Mass. 336 (2014).

                                    So ordered.
