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13-P-1735                                           Appeals Court

        COMMONWEALTH    vs.   FRANCISCO L. UBEIRA-GONZALEZ.


                           No. 13-P-1735.

       Hampden.        October 2, 2014. - January 22, 2015.

            Present:   Grasso, Kantrowitz, & Meade, JJ.


Controlled Substances. Constitutional Law, Plea, Conduct of
     government agents. Due Process of Law, Plea. Evidence,
     Guilty plea. Practice, Criminal, Plea, Conduct of
     government agents, Assistance of counsel.



     Complaints received and sworn to in the Holyoke Division of
the District Court Department on October 19 and November 4,
2009.

     Motions for a new trial, filed on March 27, 2013, were
heard by Philip A. Beattie, J.


     Jane Davidson Montori, Assistant District Attorney, for the
Commonwealth.
     Daniel J. Ciccariello for the defendant.


    MEADE, J.     In 2010, the defendant pleaded guilty to several

crimes, including possession of a class A controlled substance
                                                                         2


with the intent to distribute.1    In 2012, the defendant was

charged in Federal court with distribution of a controlled

substance.   Following his arraignment in Federal court, the

defendant moved to withdraw his 2010 guilty pleas to his State

convictions.   The defendant's motions were based on alleged

misconduct by an assistant analyst at the State laboratory in

Amherst (Amherst laboratory).     Without conducting an evidentiary

hearing or making findings, the motion judge (who was also the

plea judge) allowed the defendant's motions.       The Commonwealth

appeals and claims the judge erred by allowing the motions.         We

agree and reverse.

     1.   Background.   a.   Procedural history.    In October of

2009, the defendant was charged with possession of a class A

controlled substance (October case).     Less than one month later,

in November of 2009, the defendant was again charged with

possession of a class A controlled substance, possession with

intent to distribute a class A controlled substance, resisting

arrest, and assault and battery on a police officer (November

case).    In February of 2010, the defendant pleaded guilty to the

above charges, except for the possession of a class A controlled

substance charge in the November case, which the Commonwealth

dismissed.


     1
      The pleas were entered in two Holyoke District Court
cases: docket no. 0917CR003063 and docket no. 0917CR003249.
                                                                   3


     In May of 2012, the defendant was charged in the United

States District Court for the District of Massachusetts with

distribution of a controlled substance.   In March of 2013, the

defendant moved to withdraw his guilty pleas in the October and

November cases.   In his affidavits in support of the motions,

the defendant claimed that his guilty pleas were not made

intelligently and voluntarily because he and his attorney were

not aware of the alleged misconduct of Sonja Farak, an assistant

analyst at the Amherst laboratory who analyzed the narcotics in

the October case.   The defendant also claimed that he was not

shown the certificate of drug analysis (drug certificate) in

either case.   However, at the time of his guilty pleas, a drug

analysis had yet to be performed on the narcotics from the

November case and the defendant instead stipulated that the 206

unanalyzed packets contained heroin.2   Nonetheless, in his

affidavit in support of his motion for new trial in the November

case, the defendant claimed "the analyst of the evidence in my

case has engaged in material misconduct . . . and thus place[s]

the validity of the evidence in my case in serious doubt."

After a nonevidentiary hearing, the judge allowed each motion

with an endorsement.

     2
       In his affidavits in support of the motions to withdraw
his guilty pleas, the defendant claimed he "was advised that the
Commonwealth had established beyond a reasonable doubt that the
substance was heroin and that [he] should accept the plea
recommendation."
                                                                       4


    b.   Crimes.   In the October case, the defendant was a

passenger in a car that was stopped for a civil infraction.       He

was not wearing a seat belt.    When the police officers

ascertained the defendant's identity in order to issue him a

citation, they discovered an outstanding warrant for his arrest.

During an inventory of his possessions at the police station, an

officer found four glassine bags of heroin in the defendant's

sock.   As stated above, the heroin was analyzed at the Amherst

laboratory on December 21, 2009, by Farak.

    In the November case, the police approached and spoke to

the defendant, who was standing on a Holyoke street corner.       A

State trooper who was present recognized the defendant as

someone with whom he had had "contact" several days earlier.          An

inquiry to the warrants management system revealed an

outstanding arrest warrant for the defendant.    When the trooper

attempted to handcuff the defendant, the defendant struck the

trooper in the face and attempted to flee.    A violent struggle

ensued and continued until backup officers arrived and

handcuffed the defendant.    After the defendant was transported

to the police station, 206 packets of heroin were found on the

seat of the police cruiser.    At booking, the police recovered

$1,308 from the defendant.

    c.   Laboratory misconduct.    Attached to the Commonwealth's

opposition to the defendant's motions were two police reports.
                                                                       5


According to one report, on January 18, 2013, the State police

began an investigation of the Amherst laboratory, which focused

on Farak.     That investigation revealed Farak's mishandling of

drug samples, improper storage of drug samples, and a belief

that Farak had been removing narcotics from samples she had

tested and replacing them with counterfeit substances.       We take

judicial notice of the fact that on January 6, 2014, Farak

pleaded guilty to four counts of theft of a controlled substance

from an authorized dispensary, four counts of tampering with

evidence, and two counts of possession of a controlled

substance.3

     2.   Discussion.    "A plea of guilty and the ensuing

conviction comprehend all of the factual and legal elements

necessary to sustain a binding, final judgment of guilt and a

lawful sentence."     United States v. Broce, 488 U.S. 563, 569

(1989).   "A motion to withdraw a guilty plea is treated as a

motion for a new trial under Mass.R.Crim.P. 30(b), as appearing

in 435 Mass. 1501 (2001)."     Commonwealth v. Furr, 454 Mass. 101,

106 (2009).     "A strong policy of finality limits the grant of

new trial motions to exceptional situations, and such motions

should not be allowed lightly."     Commonwealth v. Gordon, 82

Mass. App. Ct. 389, 394 (2012).     See Commonwealth v. Lopez, 426

     3
       We may take judicial notice of court records in related
proceedings. Jarosz v. Palmer, 436 Mass. 526, 530 (2002). See
Mass. G. Evid. § 201(b)(2) (2014).
                                                                     6


Mass. 657, 662-663 (1998).    Nonetheless, "[u]nder 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."

Commonwealth v. Scott, 467 Mass. 336, 344 (2014).     See

Commonwealth v. Hunt, 73 Mass. App. Ct. 616, 619 (2009).

    Here, the Commonwealth claims the judge erred by granting

the defendant's motions to withdraw his guilty pleas without

holding an evidentiary hearing.    The Commonwealth further claims

that the motions should have been denied without an evidentiary

hearing where the defendant failed to demonstrate that any

laboratory misconduct affected his two cases or that plea

counsel was ineffective.     We agree with both claims.

    a.   Laboratory misconduct.    We begin by noting that the

judge had the discretion to deny the motions based on the

defendant's affidavits.    See Commonwealth v. Stewart, 383 Mass.

253, 257 (1981).   Indeed, "[t]he judge may rule on the issue or

issues presented by such motion on the basis of the facts

alleged in the affidavits without further hearing if no

substantial issue is raised by the motion or affidavits."

Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1502 (2001).

However, as in Commonwealth v. Gordon, supra, the judge in this

case took the remarkable step of granting the motions without

holding an evidentiary hearing.    Indeed "[a] judge's power to
                                                                     7


grant such a motion on the papers is more circumscribed."     Ibid.

If a judge is inclined to grant such a motion, he or she must

first conclude that it raises a substantial issue which would

necessitate an evidentiary hearing.4   See Commonwealth v.

Stewart, supra.   See also Mass.R.Crim.P. 30(c)(3).   At the very

least, "[h]olding an evidentiary hearing provides the

Commonwealth the opportunity to challenge the evidence presented

in the affidavits."   Commonwealth v. Gordon, supra at 395.    See

Commonwealth v. Almonte, 84 Mass. App. Ct. 735, 738 (2014),

quoting from Reporters' Notes to Rule 30(c)(3), Mass. Ann. Laws

Court Rules, Rules of Criminal Procedure, at 1662 (LexisNexis

2013-2014) (when a substantial issue arises, "the established

'better practice' has been to conduct an evidentiary hearing").

     Furthermore, the defendant "bears the burden of proof on a

motion for a new trial," Commonwealth v. Marinho, 464 Mass. 115,

123 (2013), and it is the defendant's burden to prove facts that

are "neither agreed upon nor apparent on the face of the

record."   Commonwealth v. Comita, 441 Mass. 86, 93 (2004),

quoting from Commonwealth v. Bernier, 359 Mass. 13, 15 (1971).

See Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 637 (2001)

     4
       We do not hold that a motion for new trial may never be
granted without an evidentiary hearing. If the substantial
issue raised by the motion is solely a question of law based on
undisputed facts, an evidentiary hearing may not be necessary.
Commonwealth v. Gordon, supra at 395. But if the motion does
not raise a substantial issue, neither holding an evidentiary
hearing nor granting relief is appropriate.
                                                                   8


("The defendant has the burden of producing a credible reason to

reverse the final decision, arrived at after trial or plea, that

outweighs the risk of prejudice to the Commonwealth").

    When a defendant pleads guilty, "two constitutional

requirements are necessary to assure that a counseled plea is

valid:   the defendant's choice must be voluntary and

intelligent."    Commonwealth v. Hunt, 73 Mass. App. Ct. at 619.

See Tollett v. Henderson, 411 U.S. 258, 267 (1973); Bousley v.

United States, 523 U.S. 614, 618 (1998).    Here, the defendant

did not take issue with his plea colloquies, his understanding

of the nature of the charges, or the consequences of the pleas.

Rather, he claimed that his guilty pleas were not intelligent

and voluntary due to Farak's alleged malfeasance, which came to

light in 2013.

    The only support for the defendant's motions to withdraw

his guilty pleas were his own self-serving affidavits.    In those

affidavits, the defendant claimed he was not shown the drug

certificates by his counsel.    He also averred that his counsel

advised him that the identity of the substances (as an element

of the crime) was not in doubt, and that the substances had been

established to be heroin.    The defendant's motions were not

accompanied by any drug certificate.    However, the

Commonwealth's opposition did provide a certificate for the

October case, which revealed the assistant analyst to be Farak.
                                                                      9


The defendant submitted nothing relative to the analysis of the

substance in the November case.

     In this posture, there was no support for any claimed

laboratory misconduct involving the defendant's November case

for possession with intent to distribute a class A controlled

substance.   Indeed, there is no evidence that the 206 packets

had even been analyzed before the defendant stipulated that they

contained heroin when he pleaded guilty.    That guilty plea was

more than a mere admission.   See Brady v. United States, 397

U.S. 742, 748 (1970).   See also Boykin v. Alabama, 395 U.S. 238,

242 n.4 (1969) ("A plea of guilty is more than a voluntary

confession made in open court.    It also serves as a stipulation

that no proof by the prosecution need be advanced . . . .     It

supplies both evidence and verdict, ending controversy"

[citation omitted]).    Thus, there was no evidence of

governmental misconduct involving the November case which could

have created a substantial issue for the judge to address.5     See


     5
       In his November case, the defendant also pleaded guilty to
resisting arrest (the lead count in the complaint) and assault
and battery on a police officer. Even though the defendant's
motion, affidavit, and supporting memorandum of law for the
November case made no claim relative to the invalidity of those
pleas, the judge granted a new trial on those convictions as
well. Having not been raised in his motion for new trial, any
argument relative to those convictions should have been viewed
as waived. See Mass.R.Crim.P. 30(c)(2), as appearing in 435
Mass. 1501 (2001). Moreover, the defendant has also made no
argument in his brief to this court or at oral argument as to
how Farak's misconduct tainted those convictions. To the extent
                                                                    10


Commonwealth v. Gordon, 82 Mass. App. Ct. at 395-396, quoting

from Reporters' Notes to Rule 30(c)(3), Mass. Ann. Laws Court

Rules, Rules of Criminal Procedure, at 1641 (2011-2012) ("In

determining whether the motion raises a substantial issue which

merits an evidentiary hearing, the judge should look not only at

the seriousness of the issue asserted, but also to the adequacy

of the defendant's showing").

       The October case stands on a different footing because

Farak was the assistant analyst for the possession of heroin

charge.    But that fact alone does not end the matter.   To

evaluate the propriety of the judge granting the motion in the

October case, we utilize the United States Court of Appeals for

the First Circuit's analysis in Ferrara v. United States, 456

F.3d 278, 290 (1st Cir. 2006), which has been adopted by the

Supreme Judicial Court in Commonwealth v. Scott, 467 Mass. at

346.

       "Under the Ferrara analysis, the defendant first must show

that egregious government misconduct preceded the entry of his



the claims are not waived, we are at a loss, especially without
findings from the judge, to conjure any justification for the
grant of a new trial on these convictions. Allowing a motion
for new trial without making findings runs afoul of
Mass.R.Crim.P. 30(b), which states that the judge "shall make
such findings of fact as are necessary to resolve the
defendant's allegations of error of law" (emphasis supplied).
See Commonwealth v. Almonte, 84 Mass. App. Ct. at 739. In
contrast, a one-word ruling labors "under suspicion of
arbitrariness." Id. at 740.
                                                                     11


guilty plea and that it is the sort of conduct that implicates

the defendant's due process rights."     Id. at 347.   See Ferrara

v. United States, supra at 290, 291.    This requires more than a

defendant simply misjudging the Commonwealth's case, but rather

he must show that his "guilty plea was preceded by 'particularly

pernicious' government misconduct that was the source of the

defendant's misapprehension of some aspect of his case."

Commonwealth v. Scott, supra at 347, quoting from Ferrara v.

United States, supra at 291.

       There can be no question that Farak's removal of narcotics

from samples she had tested and replacing them with counterfeit

substances constituted "egregious misconduct" by the government.

Although Farak's motives and the scale of her misconduct on this

record differed from that of Annie Dookhan's in the Hinton

laboratory cases, see Commonwealth v. Scott, supra at 337 & n.3,

Farak's conduct nonetheless caused damage to the criminal

justice process.    Also, like Dookhan, Farak was a government

agent.    See id. at 348-350.   But the similarities end there.

Under the first prong of the Ferrara analysis, a defendant "must

demonstrate that the misconduct occurred in his case."      Id. at

350.    In other words, "a defendant seeking to vacate a guilty

plea under Mass.R.Crim.P. 30(b), on the ground that government

misconduct rendered the plea involuntary, . . . is required to
                                                                    12


show a nexus between the government misconduct and the

defendant's own case."   Id. at 351.6

     Here, the defendant offered no evidence indicating that

Farak's misconduct occurred before the defendant's guilty plea.

The only evidence on this point appears in a police report

appended to the Commonwealth's memorandum in opposition to the

defendant's motion, and it indicates that Farak's misconduct

occurred in 2013 -- more than three years after Farak analyzed

the heroin in the defendant's case.     In other words, under the

Ferrara analysis, the defendant failed to make the preliminary

showing that the "egregious government misconduct preceded the

entry of his guilty plea."    Commonwealth v. Scott, 467 Mass. at

347 (emphasis supplied).7    The defendant's claim that the

Commonwealth failed to provide the judge with any evidence that


     6
       In Commonwealth v. Scott, 467 Mass. at 352, for cases
where Dookhan was the analyst, the Supreme Judicial Court
created a "conclusive presumption that egregious government
misconduct occurred in the defendant's case." The court
emphasized that the rule was "sui generis." Id. at 353. In
cases where Dookhan was not the analyst, the defendant is not
relieved of his burden to establish each element of the Ferrara
analysis. See id. at 354.
     7
       The defendant also claims the revelation of Farak's
misconduct constituted newly discovered evidence. While this
may be true, it did not cast any real doubt on the justice of
the defendant's conviction where he failed to show Farak's
misconduct occurred in his case. See Commonwealth v. Pike, 431
Mass. 212, 218 (2000) ("A defendant seeking a new trial on the
basis of newly discovered evidence must establish both that the
evidence is newly discovered and that it casts real doubt on the
justice of the conviction").
                                                                   13


Farak's misconduct did not precede the defendant's guilty pleas

misperceives the burden of proof.     It is the defendant who bears

the burden of proof on a motion for new trial.     See Commonwealth

v. Marinho, 464 Mass. at 123.   See also Commonwealth v. Chatman,

466 Mass. 327, 333 (2013) ("The defendant has the burden of

proving facts upon which he relies in support of his motion for

a new trial").   Due to the defendant's failure to sustain his

burden of proof, his claim fails under the first prong of the

Ferrara analysis.   Given this result, we need not address the

second prong of the Ferrara analysis.8

     b.   Assistance of counsel.    The Commonwealth also claims

that the defendant failed to sustain his burden of proving that

     8
       Under the second prong of the Ferrara analysis, a
defendant must demonstrate a reasonable probability that he
would not have pleaded guilty had he known of the government's
misconduct. Commonwealth v. Scott, 467 Mass. at 354-355. See
Ferrara v. United States, 456 F.3d at 290, 294. It is
significant that the defendant did not aver this in his
affidavit; an averment the Supreme Judicial Court has described
as a "minimum" for establishing prejudice. Commonwealth v.
Scott, supra at 356. We further note the favorable disposition
the defendant received. In the November case, the defendant was
sentenced to one year in the house of correction on each
conviction: resisting arrest, assault and battery on a police
officer, and possession of a class A controlled substance with
the intent to distribute. In the October case, the defendant
was sentenced to sixty days in the house of correction on his
conviction of possession of a class A controlled substance. All
sentences were to be served concurrently. In addition, the
defendant was given credit for the 111 days during which he was
held for trial. With this disposition in mind, under the second
prong, the defendant would have had to "convince the court that
a decision to reject the plea bargain would have been rational
under the circumstances." Ibid., quoting from Commonwealth v.
Clarke, 460 Mass. 30, 47 (2011).
                                                                   14


plea counsel was ineffective.   Specifically, the defendant

claimed that counsel faltered by allowing him to plead guilty

without having a drug certificate in the November case.

     Ineffective assistance of counsel requires "behavior of

counsel falling measurably below that which might be expected

from an ordinary fallible lawyer," which "likely deprived the

defendant of an otherwise available, substantial ground of

defen[s]e."   Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

The defendant must demonstrate that "better work might have

accomplished something material for the defense."   Commonwealth

v. Satterfield, 373 Mass. 109, 115 (1977).

     The defendant's motion and affidavit did not provide any

evidence, or even suggest, that at the time he pleaded guilty,

his attorney was aware of any misconduct at the Amherst

laboratory.   In fact, Farak's misconduct did not come to light

until several years after the defendant pleaded guilty.     Because

we must evaluate counsel's conduct based on what was known at

the time,9 see Strickland v. Washington, 466 U.S. 668, 689

(1984), we cannot say that his attorney's choice to proceed with

the pleas based on what he knew (even without a drug analyst's

certificate) called into question his performance on an

actionable level.   Indeed, it is not as if the defendant was


     9
       The defendant's motions were not supported with an
affidavit from his attorney.
                                                                   15


without personal knowledge of the contents of the 206 packets at

issue.    As such, the defendant's claim fails to establish the

first prong of the Saferian test, and we need go no further.10


                                     Orders granting motions for
                                       new trial reversed.




     10
       Relative to prejudice, we note only that the Ferrara
"reasonable probability" standard "mirrors our formulation of
the test for prejudice in cases in which a defendant claims that
counsel's ineffective assistance induced the defendant to plead
guilty." Commonwealth v. Scott, 467 Mass. at 356. This, as
stated above, includes at a minimum the defendant's averment
(absent here) that he would not have pleaded guilty had he known
of the misconduct at issue. See note 8, supra.
