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SJC-11771

                COMMONWEALTH   vs.   RAMON TORRES.



                       February 23, 2015.



Controlled Substances. Constitutional Law, Plea, Conduct of
     government agents. Due Process of Law, Plea, Presumption.
     Practice, Criminal, Plea, Conduct of government agents,
     Presumptions and burden of proof. Evidence, Guilty plea,
     Certificate of drug analysis, Presumptions and burden of
     proof. Notary Public.



     In January, 2008, the defendant, Ramon Torres, pleaded
guilty to distribution of a class B substance, in violation of
G. L. c. 94C, § 32A, and was sentenced to serve one year in a
house of correction. In April, 2013, in light of problems that
surfaced at the William A. Hinton State Laboratory (Hinton drug
lab or lab), and with Annie Dookhan in particular, he filed a
motion to withdraw his guilty plea and for a new trial.1 After a
hearing, a judge in the District Court, who was also the judge
who had accepted the defendant's guilty plea, denied the motion.
The defendant appealed, and we transferred his appeal to this
court on our own motion.

     According to the Brockton police department arrest report,
the defendant was arrested after selling an off-white rock-like
substance to an undercover police officer. Both a field test,

    1
       For a detailed description of the investigation of the
William A. Hinton State Laboratory, the indictment of Annie
Dookhan, and Dookhan's guilty pleas, see Commonwealth v. Scott,
467 Mass. 336, 337-342 (2014).
                                                                   2


conducted by the police, and a subsequent test at the Hinton
drug lab indicated that the substance was cocaine. The
certificate of drug analysis associated with the lab testing was
signed by assistant analysts Kate Corbett and Della Saunders.
Dookhan signed the certificate as a notary public.

     We recently considered, in several cases, the effect of
Dookhan's misconduct on a defendant's motion to withdraw a
guilty plea on the basis of that misconduct. See Commonwealth
v. Scott, 467 Mass. 336, 337 (2014), and cases cited. In Scott,
we adopted the two-part analysis set forth in Ferrara v. United
States, 456 F.3d 278, 290 (1st Cir. 2006), for cases involving
alleged government misconduct leading to a guilty plea. Scott,
supra at 346. The first prong of the Ferrara analysis requires
a defendant to 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."
Id. at 347, citing Ferrara, supra at 290, 291. The second prong
requires a defendant to demonstrate that "the misconduct
influenced his decision to plead guilty or . . . that it was
material to that choice." Scott, supra at 346, quoting Ferrara,
supra at 290.

     On the basis of Dookhan's misconduct, her guilty pleas, and
the related investigation of the Hinton drug lab, we held in
Scott that where Dookhan has

    "signed the certificate of drug analysis as either the
    primary or secondary chemist . . . the defendant is
    entitled to a conclusive presumption that Dookhan's
    misconduct occurred in his case, that it was egregious, and
    that is attributable to the Commonwealth."

Scott, 467 Mass. at 338. In such cases, the defendant must
still "demonstrate a reasonable probability that he would not
have pleaded guilty had he known of Dookhan's misconduct." Id.
at 355. In other words, the first prong of the Ferrara analysis
is presumptively met, and the defendant need only demonstrate
the second prong. As we noted in Scott, however, the "rule does
not extend . . . to cases in which Dookhan signed the . . .
certificate in her role as a notary public." Scott, supra at
352 n.8. See Commonwealth v. Garner, 467 Mass. 363, 369 (2014)
(noting that holding in Scott does not extend to cases in which
Dookhan signed certificate as notary).

     Such are the circumstances here, as the defendant
recognizes. He argues, however, that while he is not entitled
                                                                   3


to the benefit of the presumption of egregious government
misconduct because Dookhan signed the certificate only as the
notary, he is nonetheless entitled to an opportunity to
demonstrate (without the benefit of the presumption) egregious
government misconduct in his case. We agree. Nothing in Scott
forecloses a defendant from trying to demonstrate both prongs of
the Ferrara analysis in cases where the presumption of
misconduct does not apply.

     The defendant filed, and the trial court denied, his motion
to withdraw his guilty plea in April, 2013, before this court
had decided Scott. His appeal was subsequently stayed in the
Appeals Court pending our decision in that case. We now vacate
the order denying the defendant's motion and remand the case for
further consideration in accordance with Scott and this
decision. The defendant may, if he wishes to do so, file a new
motion for a new trial.2,3

                                   So ordered.

     Mathew J. Koes for the defendant.
     Stacey L. Gauthier, Assistant District Attorney, for the
Commonwealth.




    2
       We express no view whether or how the defendant can show
egregious government misconduct, which is a matter, in the first
instance, for the trial court.
    3
       Before we transferred the defendant's appeal to this
court, the Commonwealth filed a motion to strike certain
materials from the defendant's record appendix and any
references in his brief to those materials because they were not
a part of the record before the trial court. We allow the
Commonwealth's motion, and have not considered the materials.
We express no view, however, whether the materials may be
considered by the trial court, should the defendant file a new
motion to withdraw his guilty plea.
