Commonwealth v. Marino ( 1926 )

Crosby, J.

The defendant was arrested on a complaint presented to the District Court of Chelsea, charging her with keeping and exposing intoxicating liquor for sale. She entered a plea of nolo contendere and was sentenced upon her plea; and thereafter, she entered an appeal in the Superior Court. In that court she filed a motion for leave to withdraw her plea and to plead again to the charge. She also filed a petition praying that she be arraigned and allowed to plead anew. An affidavit, executed by her and to which she made oath that the recitals therein were true, accompanied the motion and petition. The motion and petition were denied, and the defendant excepted.

She contended that the plea of nolo contendere was entered by her attorney without her knowledge or consent. The record of the District Court recites that upon the reading of this complaint in open court, the defendant was asked by the court whether she was guilty or not guilty of the offence charged, and that she pleaded nolo contendere which plea was accepted by the court; and that “It appears to said court that the said defendant, is guilty of the offence aforesaid.” On the record she personally pleaded. There is nothing in the record to show that the plea was entered by her attorney. The facts stated in the motion and petition contradict the record, which is conclusive and must stand.

The contention of the defendant that the court denied the motion and petition without a hearing is not tenable, as the record expressly recites that “after a hearing” they were denied.

For the purposes of the case the plea of nolo contendere is an admission of guilt of the offence charged, and is equivalent to a plea of guilty. Commonwealth v. Tilton, 8 Met. 232, 233. Olszewski v. Goldberg, 223 Mass. 27, 28.

Whether the plea entered and accepted by the court could be withdrawn and a different plea entered rested in the sound judicial discretion of the court. There is no doubt that if the plea is entered by mistake or by inadvertence, or by an attorney without authority, the court in its discretion may permit it to be withdrawn and allow the defendant to plead anew. Commonwealth v. Winton, 108 Mass. 485. Commonwealth v. Crapo, 212 Mass. 209.

There is nothing to show that the defendant offered to testify at the hearing before the judge respecting the facts alleged in the affidavits. Without other evidence, the court was not required to believe the affidavits. Commonwealth v. Crapo, supra. The plea was an admission of the allegations of the complaint, and while the appeal to the Superior Court vacated the judgment, it did not entitle the defendant to a trial in that court; the only matter before the court was the imposition of sentence.

Exceptions overruled.