MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After pleading guilty to a count (count seven) alleging that he unlawfully carried a firearm, G. L. c. 269, § 10 (a), and was subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA), G. L. c. 269, § 10G, for having previously been convicted of both a serious drug offense and a violent crime, the defendant moved to withdraw his plea to the sentencing enhancement portion of that count. He argued that at the plea hearing the Commonwealth did not accurately describe his prior conviction that was alleged to be the serious drug offense, and did not demonstrate that his prior conviction for assault and battery by means of a dangerous weapon (ABDW) was a violent crime as defined in the ACCA. We conclude that the defendant was not entitled to withdraw his plea to the sentencing enhancement portion of count seven because of any error as to the serious drug offense, but that he was entitled to do so because of error with respect to the ABDW. Accordingly, we vacate the order denying the motion to withdraw the guilty plea.
Background. Under the ACCA, a defendant is subject to a sentencing enhancement if he has previously been convicted of a “serious drug offense” or a “violent crime,” as defined in G. L. c. 269, § 10G (e), and G. L. c. 140, § 121. If a defendant has been previously convicted of two offenses in either of those categories, or one offense in each, he is subject to a minimum mandatory sentence of ten years in state prison. G. L. c. 269, § 10G (b).
Count seven alleged that the defendant unlawfully carried a firearm, G. L. c. 269, § 10 (a), after having previously been convicted of both a serious drug offense and a violent crime.
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Count seven further alleged that the prior serious drug offense was “Unlawful Possession of a Class B Controlled Substance with Intent to Distribute,” of which the defendant was convicted in Suffolk Superior Court on November 15, 1993, and that the prior violent crime was ABDW, of which he was convicted in the Roxbury Division of the Boston Municipal Court on June 13, 1996.
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The defendant moved pursuant to Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), to dismiss the ACCA sentencing enhancement portion of count seven. He argued that the evidence before the grand jury was insufficient because a detective had testified that the defendants prior serious drug offense was “unlawful possession of a [c]lass B controlled substance with the intent to distribute,” but his criminal record showed that a charge of distributing or dispensing a class B substance had been dismissed, and instead he had been convicted of “CONTROL SUBSTANCE SCHOOL (CSA SCHOOL) UNL DIST B.” At a hearing on the McCarthy motion, the prosecutor provided to the judge and defense counsel copies of a document showing “what [the defendants] conviction was actually on relative to that school zone charge,” noting that the document “shows he was convicted for the possession with intent to distribute.” The same judge who later heard the motion to withdraw the plea (motion judge) denied the McCarthy motion, noting that the Commonwealth had submitted a printout of the Suffolk Superior Court docket and it showed that the defendant had been convicted of unlawful possession of a class B substance with intent to distribute. Thus, at the hearing on the McCarthy motion, the motion judge determined that the defendants prior serious drug offense was of possession of a class B substance with intent to distribute, not a school zone offense as erroneously listed on the criminal record.
At the plea hearing in April 2012, the prosecutor said that the prior serious drug offense conviction was of “unlawful distribution of a [c]lass B substance,” and that the violent crime conviction was of ABDW, without further describing the facts of either offense or proffering documentation of those convictions. In a colloquy with the plea judge, who was not the motion judge, the defendant agreed that the prosecutors recitation of the facts was accurate. The plea judge then clarified the defendants understanding of his prior serious drug offense:
Q.: “And you had been convicted of the offense that was mentioned by the assistant district attorney on November 15, 1993, of unlawful possession of a [c]lass B [substance] with intent to distribute?” (Emphasis added).
A.: “For unlawful possession of a [c]lass B?”
Q.: “With intent to distribute. Were you so convicted of that offense on November 15, 1993?”
A.: “No, maam. I was convicted of a school zone for that offense, maam.”
Q.: “Underlying the offense, in addition to school zone, were you --”
A.: “Charged with distribution.”
Q.: “-- and convicted with -- not distribution, but possession with intent to distribute within a school zone?” (Emphasis added).
A.: “Yes, maam.”
The judge accepted the defendants plea, including his admission that he was subject to an ACCA sentencing enhancement for having previously been convicted of both a serious drug offense and a violent crime, and sentenced him on count seven of the indictment to the mandatory minimum term of ten years in state prison required by the ACCA, G. L. c. 269, § 10G (b).
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In April 2018, the defendant moved to withdraw his plea to so much of count seven that charged the ACCA sentencing enhancement, arguing that the Commonwealth had not demonstrated at the plea hearing that his prior convictions constituted a serious drug offense or a violent crime. Among the documents the defendant submitted in support of his motion was an excerpt from the Suffolk Superior Court docket for the drug offense of which he had been convicted on November 15, 1993. It listed the charges as “COCAINE, DISTRIBUTE c94C § 32A(c),” to which he pleaded guilty, and “DRUG VIOLATION NEAR SCHOOL/PARK c94C § 32J,” which was dismissed. The motion judge denied the motion to withdraw the plea, concluding that the Commonwealth had set forth sufficient facts at the guilty plea hearing to show that the defendant was subject to an ACCA sentencing enhancement because he had been previously convicted of both a serious drug offense and a violent crime. In his ruling, the motion judge noted that the Suffolk Superior Court docket showed that the prior conviction for the serious drug offense was of “distribution” of a class B substance.
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Discussion. The defendant argues that the motion judge erred in denying his motion to withdraw the guilty plea because, at the plea hearing, there was not “an adequate factual basis” that his prior convictions were of a serious drug offense or violent crime as defined in the ACCA. Mass. R. Crim. P. 12 (c) (5) (A), as appearing in 442 Mass. 1511 (2004). See Commonwealth v. Hart, 467 Mass. 322, 325-326 (2014). See also Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758-760 (2015).
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A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). We review a judges decision on a motion to withdraw a guilty plea for abuse of discretion or significant error of law, accepting the judges findings of fact if supported by the evidence. See Commonwealth v. Al Kenani, 100 Mass. App. Ct. 288, 291 (2021).
1. Serious drug offense. The ACCA defines a serious drug offense to include “an offense under chapter 94C involving the manufacture, distribution or possession with intent to manufacture or distribute a controlled substance, as defined in [G. L. c. 94C, § 1], for which a maximum term of ten years or more is prescribed by law.” G. L. c. 269, § 10G (e). Possession of cocaine with intent to distribute, G. L. c. 94C, § 32A (c), is categorically a serious drug offense. See Commonwealth v. Ware, 75 Mass. App. Ct. 220, 223-224 (2009). See also United States v. Moore, 286 F.3d 47, 49-51 (1st Cir.), cert. denied, 537 U.S. 907 (2002).
The defendant argues that because the serious drug offense of which he was convicted in Suffolk Superior Court on November 15, 1993, is described inconsistently in the record, his plea to an ACCA sentencing enhancement predicated on that conviction was invalid. As set forth above, the plea judges understanding was that, as set forth in the indictment, the predicate serious drug offense was “unlawful possession of a [c]lass B [substance] with intent to distribute.”
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Merely because during the plea hearing the defendant referred to his prior drug conviction as being for “a school zone” offense or “distribution” did not invalidate the motion judges finding that there was an adequate factual basis for the serious drug offense charge. All three of those crimes -- possession of a class B substance with intent to distribute, G. L. c. 94C, § 32A (c), distribution of a class B substance, G. L. c. 94C, § 32A (c), and distribution of a class B substance in a school zone, G. L. c. 94C, § 32J -- fall within the definition of a serious drug offense, G. L. c. 269, § 10G (e), and thus qualify as predicates for the ACCA sentencing enhancement.
The defendant further argues that because the Commonwealth did not specify at the plea hearing which class B substance he possessed with the intent to distribute, his prior conviction did not qualify as a predicate offense. The argument is unavailing. As of June 19, 1992, the date of his predicate offense, G. L. c. 94C, § 31, Class B, as amended through St. 1991, c. 341, set forth a list of dozens of substances that are defined as class B. Any one of the substances on that list was unlawful to possess with the intent to distribute, as proscribed by G. L. c. 94C, § 32A (c), as amended through St. 1991, c. 391, which imposed a maximum term of imprisonment of ten years. Thus, the defendants prior conviction of possession with intent to distribute a class B substance was categorically a serious drug offense within the meaning of the ACCA, regardless of which class B substance. See Ware, 75 Mass. App. Ct. at 223. Even if the defendant had not waived this sufficiency claim by pleading guilty, Commonwealth v. Wentworth, 482 Mass. 664, 673 (2019), the Commonwealth was not required to prove at the plea hearing on the ACCA sentencing enhancement precisely which class B substance the defendant previously possessed with the intent to distribute.
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2. Violent crime. The ACCA defines a violent crime to include an offense that “has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another.” G. L. c. 140, § 121. See G. L. c. 269, § 10G (e). In denying the motion to withdraw the guilty plea in May 2019, the motion judge ruled, citing Commonwealth v. Widener, 91 Mass. App. Ct. 696, 703 (2017), that the defendants admission during the plea hearing that he had previously been convicted of ABDW sufficed to support the ACCA sentencing enhancement for a violent offense.
Since then, the Supreme Judicial Court has clarified the circumstances in which a prior ABDW conviction may subject a defendant to an ACCA sentencing enhancement. Because ABDW is an offense that may be committed recklessly rather than intentionally, it is not categorically a violent offense under the ACCA. See Commonwealth v. Ashford, 486 Mass. 450, 466-468 (2020). See also Commonwealth v. Perez, 100 Mass. App. Ct. 7, 12-13 (2021). The Commonwealth must adduce facts showing the crime involved violent physical force. See Wentworth, 482 Mass. at 674 (defendants admission during plea colloquy that he “struck his girlfriend at the time in the face and shoved her down on the bed” sufficed to prove assault and battery was ACCA violent offense). Absent any information at the plea hearing about the facts of the ABDW from which the plea judge could have concluded that the crime involved violence, Ashford, supra at 459, we are constrained to vacate the order denying the motion to withdraw the portion of the plea that constitutes an ACCA sentencing enhancement for a violent offense.
Conclusion. The order denying the motion to withdraw guilty plea is vacated, and an order shall enter allowing the motion. The matter is remanded to the Superior Court, where so much of the finding on count seven of the indictment as pertains to the predicate offense of ABDW must be vacated and set aside, and a new judgment entered under G. L. c. 269, § 10G (a), based on a finding of one predicate offense. See Perez, 100 Mass. App. Ct. at 16-17 & n.8. On the remainder of the count, the findings shall stand. Because the judges comment at sentencing reflects that the sentence she imposed on the conviction for ABDW causing serious bodily injury was part of a sentencing scheme that included the ACCA sentencing enhancement, see n.3, supra, the defendant should also be resentenced on the conviction for ABDW causing serious bodily injury.
So ordered.
vacated and remanded
FOOTNOTES
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. The defendant was also charged with, and later pleaded guilty to, the offenses of ABDW causing serious bodily injury, G. L. c. 265, § 15A (c) (i); assault by means of a dangerous weapon, a firearm, G. L. c. 265, § 15B (b); and assault and battery, G. L. c. 265, § 13A.
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. Count seven also alleged a second violent crime, stating that the defendant also had been convicted of ABDW on or about August 2, 1999, in the Suffolk Superior Court, but the Commonwealth entered a nolle prosequi of that portion of count seven.
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. The defendant also pleaded guilty to ABDW causing serious bodily injury, and the plea judge sentenced him on that count to a concurrent term of nine to ten years in state prison. The plea judge noted that the sentencing guidelines for that crime recommended a term of sixty to ninety months, but she was imposing a sentence exceeding the guidelines on the agreed recommendation of both parties because, on the firearm conviction, the defendant was subject to the ACCA sentencing enhancement that mandated at least a ten-year sentence.
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. As set forth above, in denying the McCarthy motion, the same motion judge had reviewed the Suffolk Superior Court docket and noted that it showed that the defendants conviction was for possession of a class B substance with intent to distribute.
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. As the motion judge noted, and as in Hart, 467 Mass. at 325 n.6, the defendant does not claim that his plea was involuntary. As set forth above, the apparent error in the board of probation record -- stating that the defendant had been convicted of the school zone charge and the charge of possession of a class B substance with intent to distribute had been dismissed -- was clarified at the hearing on the McCarthy motion. The defendant does not argue that the error affected the voluntariness of his plea.
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. To the extent that the prior conviction was referred to once at the plea hearing and on the list of charges on the Suffolk Superior Court docket as “distribution” of a class B substance, rather than “possession with intent to distribute,” the variance is unimportant. Both crimes are punishable under the same statute by a maximum term of ten years, G. L. c. 94C, § 32A (c), and thus qualify as serious drug offenses and predicates for ACCA sentencing enhancement.
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. We note that the excerpt from the Suffolk Superior Court docket that the defendant provided in support of his motion to withdraw the plea lists the substance as “COCAINE.” However, that information was not educed at the plea hearing, and so for double jeopardy reasons we do not consider it. See Commonwealth v. Ashford, 486 Mass. 450, 468 (2020), citing Commonwealth v. Beal, 474 Mass. 341, 353-354 (2016).