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SJC-12786

                 COMMONWEALTH   vs.   LUIS CLAUDIO.



      Hampden.      December 9, 2019. - February 28, 2020.

   Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
                          & Kafker, JJ.


Controlled Substances. Practice, Criminal, Plea, Sentence,
     Conduct of government agents. Supreme Judicial Court,
     Superintendence of inferior courts.



     Indictments found and returned in the Superior Court
Department on November 21, 2013.

     A motion for protections from harsher punishment in
conjunction with a motion to withdraw a guilty plea was heard by
Mark D. Mason, J., and a question of law was reported by him to
the Appeals Court.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Andrew P. Power for the defendant.
     John A. Wendel, Assistant District Attorney, for the
Commonwealth.
     David Rangaviz, Committee for Public Counsel Services,
Anthony D. Mirenda, Caroline S. Donovan, Christopher E. Hart,
Samuel C. Bauer, Emily J. Nash, & Rachel Davidson, for
Massachusetts Association of Criminal Defense Lawyers, amicus
curiae, submitted a brief.
                                                                      2



     BUDD, J.   This is yet another in a series of decisions in

which we contend with the consequences of the evidence tampering

committed over the course of several years by Sonja Farak, a

chemist at the State Laboratory Institute at the University of

Massachusetts at Amherst (Amherst lab).     Here, we address one of

the ripple effects generated by the Amherst lab scandal:     a

guilty plea negotiated by a defendant who qualified for an

enhanced sentence due to a subsequently vacated predicate

offense that had been tainted by Farak's misconduct (Farak-

related predicate offense).     We are asked to determine whether

such a defendant may challenge the guilty plea without being

exposed to a harsher sentence than that which he received in

exchange for his plea, given that the Farak-related predicate

offense has been vacated.     We conclude that the answer is yes.1

     Background.   1.   Facts and prior proceedings.   In 2013, the

defendant, Luis Claudio, was indicted on two counts alleging

aggravated statutory rape pursuant to G. L. c. 265, § 23A.       In

addition, he was indicted as a habitual criminal pursuant to

G. L. c. 279, § 25 (a), with two drug offenses on his prior

record as the predicate convictions.     General Laws c. 279, § 25

(a), the habitual criminal statute, "requires that a 'habitual




     1 We acknowledge the amicus brief submitted by the
Massachusetts Association of Criminal Defense Lawyers.
                                                                    3


criminal' -- a defendant who has been convicted of a felony and

has two prior convictions resulting in State or Federal prison

sentences of three years or more -- be sentenced to the maximum

term provided by law on the underlying conviction."

Commonwealth v. Ruiz, 480 Mass. 683, 683-684 (2018).     As G. L.

c. 265, § 23A, carries a maximum penalty of life in prison, the

defendant was exposed to a mandatory life sentence for a

conviction on the aggravated rape charges.     In 2015, the

defendant accepted a negotiated plea agreement under which he

pleaded guilty to lesser charges2 without the habitual offender

enhancements, and received a prison sentence of from six to

eight years followed by ten years of probation.

     In 2018, the defendant was identified as a so-called "Farak

defendant."3    His conviction of possession with intent to

distribute heroin, based on certificates of drug analysis (drug

certificates) signed by Farak, was, therefore, dismissed with

prejudice.     As the vacated conviction was one of the two


     2 The defendant pleaded guilty to statutory rape pursuant to
G. L. c. 265, § 23, and indecent assault and battery on a child
under fourteen years of age pursuant to G. L. c. 265, § 13B.

     3 Farak defendants are those who were convicted on a drug
charge where Farak signed a certificate of drug analysis; the
conviction was based on methamphetamine that was tested during
Farak's tenure at the Amherst lab; or the drugs were tested at
the Amherst lab between January 1, 2009, and January 18, 2013,
regardless of who signed the certificate of analysis. Committee
for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700, 734-735
(2018).
                                                                    4


predicate offenses relied on for application of the habitual

criminal enhancement, the defendant no longer qualified as a

habitual criminal.

     Before seeking to withdraw his guilty plea, which was

negotiated in circumstances that now no longer exist, the

defendant requested a preliminary ruling from the Superior Court

judge that if he were to succeed in withdrawing his plea, he

would not be subject to a harsher punishment as the result of a

reprosecution of the rape charges than the prison sentence that

he received pursuant to the plea agreement.4   The Superior Court

judge subsequently reported the following question to the

Appeals Court, pursuant to Mass. R. Crim. P. 34, as amended, 442

Mass. 1501 (2004):   "Do the protections from harsher punishment

established for 'Dookhan defendants'[5] in [Bridgeman v. District

Attorney for the Suffolk Dist., 471 Mass. 465 (2015) (Bridgeman


     4 The two aggravated rape charges each carry a minimum
mandatory sentence of ten years which could be imposed
consecutively. See G. L. c. 265, § 23A.

     5 Annie Dookhan was a chemist who engaged in widespread
evidence tampering at the William A. Hinton State Laboratory
Institute in the Jamaica Plain section of Boston (Hinton lab).
The evidence tampering affected tens of thousands of defendants
with drug convictions based on evidence tested at the Hinton
lab. See Bridgeman v. District Attorney for the Suffolk Dist.,
476 Mass. 298, 301-303 (2017) (Bridgeman II).

     Dookhan defendants include those whose drug convictions
relied on drug certificates signed by Dookhan as a primary or
secondary chemist. See Commonwealth v. Scott, 467 Mass. 336,
354 (2014).
                                                                    5


I),][6] apply to 'Farak defendants' who are challenging pleas

based upon Farak-related grounds relating to G. L. c. 279, [§ 25

(a)], predicate offenses?"   We allowed the defendant's

application for direct appellate review and now broaden the

question to include any Farak-related predicate offenses that

resulted in enhanced sentences on subsequent convictions.     See

Commonwealth v. Martinez, 480 Mass. 777, 783 (2018), quoting

McStowe v. Bornstein, 377 Mass. 804, 805 n.2 (1979).

     2.   Overview of the remedies for the misconduct of Dookhan

and Farak.   Because the reported question involves a Farak

defendant and references a remedy provided to qualifying Dookhan

defendants, to answer it we must review the remedies provided to

each category of defendants.7

     a.   Remedy for Dookhan defendants.   Dookhan, whose

wrongdoing at the William A. Hinton State Laboratory Institute

in the Jamaica Plain section of Boston (Hinton lab) was first

discovered in June 2011, was found to have engaged in egregious


     6 As discussed infra, in Bridgeman I, 471 Mass. at 477, we
held that defendants who were granted a new trial based on
Dookhan's misconduct would not be faced with a more serious
offense or be given a more severe sentence than he or she
initially received.

     7 We previously recounted details of the wrongdoing in
connection with Dookhan and Farak. See, e.g., Committee for
Pub. Counsel Servs., 480 Mass. at 705-720; Bridgeman II, 476
Mass. at 301-303. We will not repeat them here except to the
extent necessary to explain the difference between the remedies
offered to Dookhan defendants and Farak defendants.
                                                                       6


misconduct over the course of two to three years by, among other

things, making "a number of affirmative misrepresentations by

signing drug certificates and testifying to the identity of

substances in cases in which she had not in fact properly tested

the substances in question."      Commonwealth v. Scott, 467 Mass.

336, 348 (2014).      In fashioning a remedy for Dookhan defendants

(who numbered in the thousands), we ultimately declined to

vacate their convictions wholesale, reasoning that as "serious

as [Dookhan's conduct] was, [it] did not result in irremediable

harm" to defendants' opportunities to obtain fair trials

(quotation and citation omitted).      Bridgeman v. District

Attorney for the Suffolk Dist., 476 Mass. 298, 322 (2017)

(Bridgeman II).      Further, "given the absence of any evidence of

misconduct by a prosecutor or an investigator, [we did not]

place Dookhan's misconduct in the category that requires a

stronger deterrent than a new trial to avoid the risk of

repetition."   Id.

    Instead, using our general power of superintendence, we

developed a framework to ascertain whether a Dookhan defendant

was entitled to a new trial on his or her drug conviction.      See

Scott, 467 Mass. at 352.      Ordinarily, a defendant is entitled to

withdraw a guilty plea by demonstrating that (1) egregious

government misconduct took place in connection with the

defendant's case and preceded the entry of the guilty plea; and
                                                                      7


(2) the misconduct was material to the defendant's decision to

plead guilty.     Id. at 346, citing Ferrara v. United States, 456

F.3d 278, 290 (2006).     We determined that given the nature of

Dookhan's misconduct, Dookhan defendants would be able to

establish the first prong of the Ferrara analysis simply by

furnishing a drug certificate that she signed.     Scott, supra at

353.     These defendants still would have to meet the second prong

of the test, that is, to demonstrate that the misconduct

influenced the decision to plead guilty.      Id. at 354.

       As discussed in more detail infra, we also held that any

Dookhan defendant who succeeded in securing a new trial could

not be charged with a more serious offense, nor receive a longer

sentence than originally imposed (Bridgeman cap).     Bridgeman I,

471 Mass. at 477.

       b.   Remedy for Farak defendants.   The Amherst lab scandal

was larger in scope than Dookhan's wrongdoing at the Hinton lab.

Over the course of more than eight years, among other misdeeds,

Farak stole from the Amherst lab's stock of known

methamphetamine "standards" used for comparison with alleged

drugs.      Committee for Pub. Counsel Servs. v. Attorney Gen., 480

Mass. 700, 706-707 (2018).      She then turned to tampering not

only with drug samples assigned to her, but also with other

chemists' samples, stealing illegal narcotics submitted to the

Amherst lab for testing to fuel her own drug habit.     Id. at 707-
                                                                     8


709.    She also manipulated evidence and reports to conceal these

activities.    Id. at 708-709.   This misconduct was compounded by

the wrongful actions of members of the Attorney General's

office, who failed to investigate thoroughly Farak's wrongdoing

and later deliberately withheld information.     Id. at 711-720.

       Consequently, in contrast to the remedy created for Dookhan

defendants, we determined that for Farak defendants the "very

strong medicine of dismissal with prejudice [was] required."

Id. at 725.    We therefore again exercised our broad powers of

superintendence to vacate and dismiss with prejudice thousands

of drug convictions that relied on evidence tested at the

Amherst lab during Farak's tenure there based on certain

criteria.    Id. at 729.

       Discussion.   Although the convictions based on Farak's

misconduct (Farak convictions) have been dismissed with

prejudice, there is a category of Farak defendants for whom the

dismissed convictions nevertheless continue to have an adverse

effect.     That is, there are some defendants, like the defendant

here, for whom a Farak conviction was counted as a predicate for

enhanced sentencing on subsequent charges prior to its

dismissal.    As such, the now vacated convictions exposed this

category of defendants to enhanced penalties.     We conclude that

such a result cannot stand.
                                                                   9


    In Bridgeman I, 471 Mass. at 475, we acknowledged that

"[i]n the ordinary course, when a defendant withdraws [a]

[guilty] plea after sentencing, [the defendant] may receive a

harsher sentence than was originally imposed" (citation and

quotations omitted).   However, we also recognized that, in the

circumstances of the so-called Dookhan cases, "[a] return to the

status quo ante would mean ignoring the egregious misconduct of

Dookhan and disregarding its impact on criminal defendants whose

drug samples she analyzed."    Id.   In exercising our powers of

superintendence to hold that any potential sentence for a

Dookhan defendant who was granted a new trial would be capped at

the sentence originally imposed, we reasoned that without such a

cap, a Dookhan defendant would be forced to bear the burden of

the government's misconduct.    Id. at 475-476.   That is, the

Dookhan defendant would be placed in the untenable position of

either accepting a tainted conviction, or successfully

withdrawing a guilty plea and risking a greater punishment in so

doing.   Id.

    In addition, we recognized that a Dookhan defendant who

pleaded guilty and subsequently sought to withdraw a plea in

favor of moving for a new trial should not lose the benefit of

the agreement that the Dookhan defendant had made where

government misconduct would be the reason for seeking a new

trial in the first place.   Id. at 477.   In essence, without a
                                                                  10


cap in place, the Commonwealth would have the advantage of

getting a "second bite at the proverbial apple in its efforts to

convict" a Dookhan defendant who won a new trial.    Id.   We

ultimately concluded that it would be wrong for Dookhan

defendants to bear the burden "of a systemic lapse that, in the

circumstances of the Hinton drug lab, we have said is entirely

attributable to the government, even though there is no

indication that prosecutors had actual knowledge of Dookhan's

misconduct during their prosecutions of the Dookhan defendants."

Id. at 476.

    In comparison, the government misconduct associated with

the Amherst lab occurred over a longer period of time, affected

more defendants, and, unlike the Hinton lab scandal, did include

wrongdoing by prosecutors.   See Committee for Pub. Counsel

Servs., 480 Mass. at 725.    The remedy that we determined was

required as a result -- dismissal of the affected convictions

with prejudice -- was unprecedented in its scope.

    Because the Farak convictions were dismissed with

prejudice, the sentencing cap that we created for Dookhan

defendants (who can be retried) is not applicable.    However,

just as we concluded that a cap on subsequent charges and

sentences was appropriate for Dookhan defendants who are retried

on dismissed drug charges, we now conclude that a similar cap is

required in the case of Farak defendants who have been
                                                                  11


negatively affected, albeit indirectly, by the use of the

convictions, tainted by Farak, as predicates for enhanced

sentencing.

     There is no principled reason why a Farak defendant who has

been collaterally affected by more egregious government

misconduct should have to choose between accepting an outcome

based on a conviction that no longer exists and exposing himself

or herself to a harsher punishment than initially was imposed.8

The Appeals Court has recognized, in the context of the Ferrara-

Scott standard for obtaining new trials, that misconduct in

obtaining a conviction can taint the validity of subsequent

pleas predicated on the original misconduct.   See Commonwealth

v. Williams, 89 Mass. App. Ct. 383, 389-390 (2016) ("To the

extent the defendant's plea resulted from a desire to avoid [an

elevated] sentence that would not have been permitted after the

[Dookhan-related] predicate offense was vacated, the defendant's

decision to plead guilty was not a correctly informed one").

See also Commonwealth v. Wallace, 92 Mass. App. Ct. 7, 12 (2017)




     8 The sentencing cap for a defendant who succeeds in
withdrawing a guilty plea where a Farak-related predicate
offense exposed the defendant to an enhanced sentence will only
apply in a case where Farak's misconduct had a significant,
nonattenuated impact on the subsequent plea. This is because,
as discussed supra, one of the prongs a defendant must satisfy
to withdraw a guilty plea based on government misconduct is that
such misconduct was material to the decision to plead guilty.
See Scott, 467 Mass. at 346.
                                                                   12


(acknowledging that "governmental misconduct in one case could

contaminate another case").

    We cannot allow the damaging effects of the government's

egregious misconduct in Farak-related cases to live on, even as

the tainted convictions have been vacated, in the form of

predicates for enhanced sentences on subsequent charges.     For

much the same reasons we created the Bridgeman cap for Dookhan

defendants who withdraw their pleas to Dookhan-related

convictions, we here apply an analogous cap to Farak defendants

who succeed in withdrawing guilty pleas where they were charged

with enhanced sentences predicated on now-vacated Farak

convictions.

    We further conclude that this cap must be applied

retroactively for defendants who have already withdrawn such

pleas and subsequently pleaded guilty to more serious charges,

who were convicted of more serious charges at a trial, or who

received longer sentences than they had for their first pleas.

See Commonwealth v. Camacho, 483 Mass. 645, 650-651 (2019)

(applying Bridgeman cap retroactively in discretionary exercise

of superintendence powers).   Just as we observed with respect to

Dookhan defendants, those Farak defendants who already may have

moved to withdraw their guilty pleas should not be placed "in a

substantively worse position" than those who withdraw their

pleas after this case is released.   See id. at 651.
                                                                  13


     Conclusion.   In Scott, 467 Mass. at 352, we recognized that

Dookhan's misconduct "cast a shadow over the entire criminal

justice system."   In comparison, the government misconduct

committed by Farak and members of the Attorney General's office

cast a shadow even longer and darker.   In a continuing effort to

remedy that misconduct, we conclude that any potential sentence

on retrial for a defendant for whom a Farak conviction served as

a predicate offense for an enhanced penalty must be capped at

the sentence originally imposed when the defendant initially

pleaded guilty.9

     The case is remanded to the Superior Court for further

proceedings consistent with this opinion.

                                   So ordered.




     9 Should the defendant here move to withdraw his plea, the
motion would require independent analysis. We express no
opinion as to the merits of such a motion. See Scott, 467 Mass.
at 346.
