Commonwealth v. Kenmore Roberts. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-507
COMMONWEALTH
vs.
KENMORE ROBERTS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Kenmore Roberts, pleaded guilty to drug and
firearm charges in the Superior Court on March 27, 2007. On May
22, 2017, the defendant's drug conviction for cocaine
trafficking was vacated and dismissed with prejudice pursuant to
an order of the Supreme Judicial Court. 1 On December 7, 2020,
the defendant filed a "motion to withdraw guilty plea; vacate
remaining convictions; and grant a new trial" with respect to
the firearm and marijuana possession charges. Following a
hearing, the motion was denied. This appeal followed. We
affirm.
The defendant contends that the motion judge erred in
denying his motion to vacate the firearms and marijuana
1 See Bridgeman v. District Attorney for the Suffolk Dist., 476
Mass. 298 (2017).
convictions because they were tainted by the misconduct of Annie
Dookhan. He further contends that plea counsel was ineffective.
"A motion . . . pursuant to Mass. R. Crim. P. 30 (b)[, as
appearing in 435 Mass. 1501 (2001),] is the proper vehicle by
which to seek to vacate a guilty plea. . . . Under Mass. R.
Crim. P. 30 (b), a judge may grant a motion for a new trial any
time it appears that justice may not have been done."
Commonwealth v. Williams, 89 Mass. App. Ct. 383, 387 (2016),
quoting Commonwealth v. Scott, 467 Mass. 336, 344 (2014). "We
review the denial of a motion to withdraw a guilty plea to
determine whether there has been a significant error of law or
other abuse of discretion." Commonwealth v. Lastowski, 478
Mass. 572, 575 (2018), quoting Commonwealth v. Sylvester, 476
Mass. 1, 5 (2016).
Motion to withdraw pleas. "The Supreme Judicial Court
articulated a two-prong test, based on Ferrara v. United States,
456 F.3d 278, 290-297 (1st Cir. 2006), for analyzing a
defendant's motion to withdraw a guilty plea in cases involving
Dookhan's misconduct at the Hinton laboratory (Ferrara-Scott
test)." Commonwealth v. Lewis, 96 Mass. App. Ct. 354, 359-360
(2019), citing Commonwealth v. Scott, 467 Mass. 336, 346-353
(2014). "Under the first prong of the analysis, a defendant
must show egregious misconduct by the government that preceded
the entry of the defendant's guilty plea and that occurred in
2
the defendant's case." Commonwealth v. Resende, 475 Mass. 1, 3
(2016). "Under the second prong of the Ferrara-Scott test, the
defendant also 'must demonstrate a reasonable probability that
he would not have pleaded guilty had he known of Dookhan's
misconduct.'" Lewis, supra at 360, quoting Scott, 467 Mass. at
355. Under this framework, the defendant received the result to
which he was entitled -- dismissal of the cocaine trafficking
conviction, with prejudice. This is particularly important
where Dookhan did not perform the testing in connection with the
defendant's marijuana conviction.
In addition, it is well settled that "the conclusive
presumption of governmental misconduct set forth in Scott
applies only to the tainted drug convictions." Commonwealth v.
Henry, 488 Mass. 484, 492 (2021). The defendant failed to show
any government misconduct related to the firearm and marijuana
possession convictions. Also, other than his own affidavit,
which the motion judge was not required to credit, the defendant
failed to present evidence that Dookhan's misconduct materially
influenced his decision to plead guilty. Further, the
Commonwealth's case against the defendant was strong, and the
defendant's strategy in trying to suppress the firearm evidence
was reasonable based on the penalties he faced. 2 Accordingly,
2 To the extent that the defendant argues that he had a strong
constructive possession defense, we note that the firearms were
3
the defendant is unable to "convince the court that a decision
to reject the plea bargain would have been rational under the
circumstances." Scott, 467 Mass. at 356, quoting Commonwealth
v. Clarke, 460 Mass. 30, 47 (2011). 3
Ineffective assistance of counsel. Generally, to prevail
on an ineffective assistance of counsel claim a defendant must
demonstrate that, but for his counsel's "serious incompetency,
inefficiency, or inattention[,]" Commonwealth v. Saferian, 366
Mass. 89, 96 (1974), "the result of the proceeding would have
been different." Commonwealth v. Mahar, 442 Mass. 11, 15
(2004), quoting Strickland v. Washington, 466 U.S. 668, 694
(1984). The defendant claims that plea counsel was ineffective
for failing to advise the defendant of the "direct consequences
of agreeing to a government plea offer that was per se
divisible." However, "we have consistently permitted guilty
pleas to stand even when other guilty pleas, entered at the same
time, were vacated." Lewis, 96 Mass. App. Ct. at 357. Although
we did not foreclose the possibility that the parties, with the
assent of the judge, could state that the pleas were
located on the driver's side floor and under the driver's seat
in a car owned and operated by the defendant and in which he was
the sole occupant.
3 The defendant also contends that his plea must be vacated as
void or voidable based on contract principles. The Supreme
Judicial Court considered and rejected this remedy for Dookhan's
misconduct in Bridgeman, 476 Mass. at 475-478.
4
indivisible, this type of request is unusual and failure to make
it does not render plea counsel ineffective.
Because the defendant's claims of error fail for the
reasons stated, so too does his claim of cumulative error.
Order denying motion to
withdraw guilty pleas, and
for a new trial, affirmed.
By the Court (Milkey, Blake &
Sacks, JJ. 4),
Clerk
Entered: October 11, 2023.
4 The panelists are listed in order of seniority.
5