MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Mark Hunter, appeals from an order of a Superior Court judge denying his motion to withdraw his guilty pleas to a number of violent crimes and drug crimes.
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Concluding that the judge did not coerce the defendants guilty pleas by expressing what sentence he would impose when the judge was not the assigned trial judge, we affirm.
1. Standard of review. “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).” Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). When a defendant appeals from the denial of a motion for a new trial, we review “only to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016), quoting Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015).
2. Judicial coercion. “[A] plea of guilty induced by a judges threat to impose more severe punishment upon a defendant who chooses to exercise his constitutional rights” to trial is coercive. Commonwealth v. Damiano, 14 Mass. App. Ct. 615, 618 (1982). “That level of coercion ․ would mean that the judge forced a guilty plea by putting the defendant on notice that he could expect more severe punishment because he insisted on exercising his right to a trial by jury.” Commonwealth v. Bowen, 63 Mass. App. Ct. 579, 585 (2005). By contrast, “judges are permitted to inform defendants about their options and about the ramifications of a decision to enter a plea or proceed to trial.” Commonwealth v. Carter, 50 Mass. App. Ct. 902, 903 (2000). A statement that the Commonwealths case is strong and that, “if the defendant were found guilty at trial, he could face a significantly greater penalty” is not coercive. Bowen, supra at 582. A promise of a more severe sentence after trial, however, is coercive. See id. at 585.
Every case in which judicial coercion has been found in Massachusetts involves a situation where the judge making the statement would be the sentencing judge and thus controlled the sentence after trial. See Commonwealth v. McCalop, 485 Mass. 790, 802 (2020) (statements made by trial judge immediately before enhancement stage of trial); Parreira v. Commonwealth, 462 Mass. 667, 669 (2012) (statements made by trial judge during trial); Letters v. Commonwealth, 346 Mass. 403, 404, 407 (1963) (same); Carter, 50 Mass. App. Ct. at 902-903 (same). It is not necessary that the trial already have begun if the judge making the statements is the assigned trial judge. See Bowen, 63 Mass. App. Ct. at 580 (analyzing statements made by trial judge “[o]n the eve of the defendants scheduled trial”); Damiano, 14 Mass. App. Ct. at 616, 620 (question analyzed but statements ultimately found not coercive). “In those cases in which a more severe sentence following a rejected plea bargain has been held violative of the constitutional right to trial, the common thread had been the offer of a more lenient sentence in a ‘plea or else’ form.” Commonwealth v. Johnson, 27 Mass. App. Ct. 746, 751 (1989).
Here, the plea judge told the defendant, “youre looking at something approaching 20 years if I was the Judge,” a statement that would be coercive if the plea judge was the assigned trial judge. See Bowen, 63 Mass. App. Ct. at 585. The cases had not been assigned to the plea judge for trial, however, and it was the plea judges practice not to serve as trial judge in cases in which he had conducted a lobby conference.
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Accordingly, this case turns on the accuracy of the plea judges finding that “it still should have been clear to the defendant that I was not the trial judge.”
We discern no reason to overturn this finding. The judges very use of the qualifier “if I was the Judge” suggested that he would not be the trial judge. He told the defendant that, “if youre on trial or in the midst of it and you decide to plea, you cant go back in front of me,” a statement that presupposes that trial would be in front of a different judge. He repeatedly stated that he was “the only one who is bound to” his statements. The first trial was scheduled for Tuesday, September 10, and the judge stated that he was presiding over a different trial starting the previous Friday, making it unrealistic that he would be the trial judge. Moreover, although the defendant stated in his affidavit that he “believed that if the case went to trial and he was the judge he would impose a 20 years sentence,” the defendant nowhere averred that he believed that the plea judge would be the trial judge. Without the defendants reasonable expectation that the plea judge would be the trial judge, his claim of judicial coercion fails, and the judges statements were merely information “about their options and about the ramifications of a decision to enter a plea or proceed to trial.” Carter, 50 Mass. App. Ct. at 903.
Order denying motion for new trial affirmed.
FOOTNOTES
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. Specifically, the defendant pleaded guilty to one count of armed robbery while masked, G. L. c. 265, § 17; eight counts of armed robbery, G. L. c. 265, § 17; one count of unarmed robbery, G. L. c. 265, § 19 (b); one count of carjacking, G. L. c. 265, § 21A; one count of armed assault with the intent to rob a victim sixty years or older, G. L. c. 265, § 18 (a); one count of kidnapping, G. L. c. 265, § 26; one count of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b); eight counts of assault by means of a dangerous weapon, G. L. c. 265, § 15B (b); two counts of possession of heroin with the intent to distribute (subsequent offense), G. L. c. 94C, § 32 (b); and one count of possession of cocaine with the intent to distribute (subsequent offense), G. L. c. 94C, § 32A (d).
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. As the judge pointed out, this issue could have been avoided had the judge expressly stated that on the record, as is his current practice.