2013 Mass. App. Unpub. LEXIS 597 12-P-1240
The defendant in this case, appealed from the
denial of his motion to withdraw his August, 2006, guilty pleas to two counts
of trafficking in cocaine, G. L. c. 94C, § 32E(b)(2), and two counts of
conspiracy to violate drug laws, G. L. c. 94C, § 40. The defendant argued that
he was erroneously told that each offense carried a maximum of fifteen years in
prison, instead of twenty, and therefore his pleas were involuntary.
At the plea colloquy, the judge stated that the
maximum punishment for each of the offenses was fifteen years; in reality, each
of the four offenses carried a potential sentence of twenty years. G. L. c.
94C, §§ 32E(b)(2), 40. Following the Commonwealth's recommendation, the judge
stated that the defendant would "have to be willing to accept a sentence of
not less than 12 years, no more than 15 years to the state prison." The
defendant acknowledged that he understood. The motion judge concluded that,
because the defendant was sentenced to twelve to fifteen years, as he was
advised, the defendant did not establish that a misstatement of the
maximum penalty had any bearing on voluntariness. The defendant's motion was treated as one for a
new trial pursuant to Mass.R.Crim.P. 30(b),
435 Mass. 1501 (2001), and review for an abuse of discretion or clear error of
law.
The court
explained that during a plea colloquy, the judge must inform the defendant
"where appropriate, of the maximum possible sentence on the charge." Mass.R.Crim.P. 12(c)(3)(B), 442 Mass. 1514
(2004). The court then stated that even if the judge failed to do so correctly
in this instance, that does not mean, however, that the plea was not entered
intelligently, knowingly, and voluntarily. The judge's misstatement "did
not significantly affect the substance of the [rule 12(c)(3)]
requirement."
Because the defendant's sentence did not exceed
the recommended twelve to fifteen years, no injustice results from the denial
of his motion. See Commonwealth v.
Cavanaugh, 12 Mass. App. Ct. 543,
546, (1981). See also Commonwealth v.
Rodriguez, supra at 579. “A defendant who enters into a plea bargain for
less than the maximum sentence available under the law cannot be heard to
complain, upon being sentenced within the limits of the plea bargain, that he
was not advised of the maximum sentence provided by law.” Therefore, the court
denied the motion to withdraw guilty pleas or for new trial and the trial
court’s decision was affirmed.
Written 6/30/2013
