Commonwealth v. Elvis J. Luckham. ( 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-756
COMMONWEALTH
vs.
ELVIS J. LUCKHAM.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2013, the defendant was charged by complaint with
operation of a motor vehicle while under the influence of
intoxicating liquor (OUI); operation of a motor vehicle after
his license had been suspended; and failure to stop for a police
officer. The following year, the defendant pleaded guilty to
the OUI charge, and in return, the Commonwealth entered notices
of nolle prosequi as to the two remaining charges.
In 2021, the defendant filed a motion to withdraw his
guilty plea, which was denied. On appeal, the defendant claims
the judge erred in denying the motion because had he known of
the misconduct of the Office of Alcohol Testing (OAT) as it
related to breathalyzer tests and the resulting inadmissibility
of such evidence in his case, he would not have pleaded guilty.
See Commonwealth v. Hallinan, 491 Mass. 730, 745-751 (2023)
(defendant allowed to withdraw her admission to sufficient
facts). We affirm.
"A motion to withdraw a guilty plea is treated as a motion
for a new trial under Mass. R. Crim. P. 30 (b), as appearing in
435 Mass. 1501 (2001)." Commonwealth v. Jean-Louis, 102 Mass.
App. Ct. 348, 351 (2023). "A judge may grant the defendant's
motion only if it appears that justice may not have been done"
(quotations and citations omitted). Commonwealth v. Furr, 454
Mass. 101, 106 (2009). "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). 1
Here, the defendant pleaded guilty after having taken a
breathalyzer test that showed a blood alcohol content of 0.08
percent. However, that breath test was conducted at a time
1 Relying on Commonwealth v. Mazza, 484 Mass. 539, 547 (2020),
the defendant claims that our review is de novo because the
motion judge was not the trial judge, and he took no evidence.
We disagree. In Hallinan, on which this appeal is based, the
Supreme Judicial Court reviewed for an abuse of discretion, not
de novo, even though the motion judge was not the judge who took
the defendant's plea, and despite the motion judge only
conducting a non-evidentiary hearing. Hallinan, supra at 733,
745. See Commonwealth v. Hart, 467 Mass. 322, 324 (2014).
Contrast Commonwealth v. Escobar, 479 Mass. 225, 227 (2018)
(where it is question of statutory interpretation, review is de
novo). In any event, we would reach the same result in this
case under a de novo review.
2
during which the Supreme Judicial Court has held that defendants
are entitled to a conclusive presumption of egregious government
misconduct, see Commonwealth v. Scott, 467 Mass. 336, 338, 346,
352-353 (2014); Ferrara v. United States, 456 F.3d 278, 290-291
(1st Cir. 2006), and their breath test results are excluded from
use at any subsequent trial. See Hallinan, supra at 731, 755.
Under the second prong of the Scott-Ferrara test, the
defendant must demonstrate a reasonable probability that he
would not have pleaded guilty had he known of OAT's misconduct.
See Hallinan, supra at 750. Here, the motion judge analyzed the
reasonable probability question through the lens of Commonwealth
v. Clarke, 460 Mass. 30, 46-47 (2011), abrogated on other
grounds by Chaidez v. U.S., 568 U.S. 342, 347 (2013), the
defendant does not claim any separate impropriety because of
this. Under Clarke, the motion judge evaluates whether it would
have been rational to reject the plea deal under the
circumstances. Id. 2
2 The motion judge held that it would not have been "reasonable
or rational for the [d]efendant to go to trial." In his brief,
the defendant analyzed the five Hallinan factors as part of the
evaluation of the second prong of the Scott-Ferrara test. Those
factors are: "(1) whether evidence of the government misconduct
could have detracted from the factual basis used to support the
guilty plea, (2) whether the evidence could have been used to
impeach a witness whose credibility may have been outcome-
determinative, (3) whether the evidence is cumulative of other
evidence already in the defendant's possession, (4) whether the
evidence would have influenced counsel's recommendation as to
whether to accept a particular plea offer, and (5) whether the
3
As the motion judge found, there was considerable evidence
of impairment. The defendant displayed droopy, glassy, and
bloodshot eyes, he could not focus, and a strong odor of alcohol
and marijuana emanated from the car and from the defendant
himself. When the police attempted to engage the defendant in
conversation, he looked straight ahead and drove away, despite
requests for him to stop. This permitted an inference of the
defendant's consciousness of guilt. See Commonwealth v.
Indrisano, 87 Mass. App. Ct. 709, 718 (2015). When he was
eventually stopped a second time, and was out of the car, the
defendant was swaying back and forth, he was unsteady on his
feet, and he could not provide his name. Also, the defendant's
blood alcohol content of 0.08 percent was not powerful evidence
of his intoxication, unlike in Hallinan, where it was measured
at 0.23 percent, which the court characterized it as the "crown
jewel" of the Commonwealth's case. Hallinan, supra at 750.
Furthermore, the defendant did not provide any information
about what advice he had received from counsel, nor was there an
affidavit from plea counsel. Contrast id. at 751. Also, unlike
Hallinan, the Commonwealth dismissed two additional charges when
the defendant offered to plead guilty to the OUI, one of which
value of the evidence was outweighed by the benefits of entering
into the plea agreement." Hallinan, supra at 750, quoting
Scott, supra at 355.
4
carried a mandatory sixty-day suspension of his license, a
period longer than that otherwise associated with a first
offense OUI conviction in which a breathalyzer was administered.
See G. L. c. 90, §§ 23, 24D, and 25. In Hallinan, there were no
charge concessions. See Hallinan, supra at 751. The motion
judge properly weighed these factors against the defendant's
claim.
At bottom, it was not an abuse of discretion for the judge
to conclude that the defendant failed to demonstrate that there
was a reasonable probability that he would not have pleaded
guilty had he know about the inadmissibility of the breathalyzer
results. Accordingly, the defendant's motion to withdraw his
guilty plea was properly denied.
Order denying motion to
withdraw guilty plea
affirmed.
By the Court (Meade, Singh &
Smyth, JJ. 3),
Clerk
Entered: December 8, 2023.
3 The panelists are listed in order of seniority.
5