Commonwealth v. Claudio

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SJC-12786
COMMONWEALTH vs. LUIS CLAUDIO.
Hampden. December 9, 2019. - February 28, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Controlled Substances. Practice, Criminal, Plea, Sentence,
Conduct of government agents. Supreme Judicial Court,
Superintendence of inferior courts.
Indictments found and returned in the Superior Court
Department on November 21, 2013.
A motion for protections from harsher punishment in
conjunction with a motion to withdraw a guilty plea was heard by
Mark D. Mason, J., and a question of law was reported by him to
the Appeals Court.
The Supreme Judicial Court granted an application for
direct appellate review.
Andrew P. Power for the defendant.
John A. Wendel, Assistant District Attorney, for the
Commonwealth.
David Rangaviz, Committee for Public Counsel Services,
Anthony D. Mirenda, Caroline S. Donovan, Christopher E. Hart,
Samuel C. Bauer, Emily J. Nash, & Rachel Davidson, for
Massachusetts Association of Criminal Defense Lawyers, amicus
curiae, submitted a brief.
2
BUDD, J. This is yet another in a series of decisions in
which we contend with the consequences of the evidence tampering
committed over the course of several years by Sonja Farak, a
chemist at the State Laboratory Institute at the University of
Massachusetts at Amherst (Amherst lab). Here, we address one of
the ripple effects generated by the Amherst lab scandal: a
guilty plea negotiated by a defendant who qualified for an
enhanced sentence due to a subsequently vacated predicate
offense that had been tainted by Farak's misconduct (Farak-
related predicate offense). We are asked to determine whether
such a defendant may challenge the guilty plea without being
exposed to a harsher sentence than that which he received in
exchange for his plea, given that the Farak-related predicate
offense has been vacated. We conclude that the answer is yes.1
Background. 1. Facts and prior proceedings. In 2013, the
defendant, Luis Claudio, was indicted on two counts alleging
aggravated statutory rape pursuant to G. L. c. 265, § 23A. In
addition, he was indicted as a habitual criminal pursuant to
G. L. c. 279, § 25 (a), with two drug offenses on his prior
record as the predicate convictions. General Laws c. 279, § 25
(a), the habitual criminal statute, "requires that a 'habitual
1 We acknowledge the amicus brief submitted by the
Massachusetts Association of Criminal Defense Lawyers.
3
criminal' -- a defendant who has been convicted of a felony and
has two prior convictions resulting in State or Federal prison
sentences of three years or more -- be sentenced to the maximum
term provided by law on the underlying conviction."
Commonwealth v. Ruiz, 480 Mass. 683, 683-684 (2018). As G. L.
c. 265, § 23A, carries a maximum penalty of life in prison, the
defendant was exposed to a mandatory life sentence for a
conviction on the aggravated rape charges. In 2015, the
defendant accepted a negotiated plea agreement under which he
pleaded guilty to lesser charges2 without the habitual offender
enhancements, and received a prison sentence of from six to
eight years followed by ten years of probation.
In 2018, the defendant was identified as a so-called "Farak
defendant."3 His conviction of possession with intent to
distribute heroin, based on certificates of drug analysis (drug
certificates) signed by Farak, was, therefore, dismissed with
prejudice. As the vacated conviction was one of the two
2 The defendant pleaded guilty to statutory rape pursuant to
G. L. c. 265, § 23, and indecent assault and battery on a child
under fourteen years of age pursuant to G. L. c. 265, § 13B.
3 Farak defendants are those who were convicted on a drug
charge where Farak signed a certificate of drug analysis; the
conviction was based on methamphetamine that was tested during
Farak's tenure at the Amherst lab; or the drugs were tested at
the Amherst lab between January 1, 2009, and January 18, 2013,
regardless of who signed the certificate of analysis. Committee
for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700, 734-735
(2018).
4
predicate offenses relied on for application of the habitual
criminal enhancement, the defendant no longer qualified as a
habitual criminal.
Before seeking to withdraw his guilty plea, which was
negotiated in circumstances that now no longer exist, the
defendant requested a preliminary ruling from the Superior Court
judge that if he were to succeed in withdrawing his plea, he
would not be subject to a harsher punishment as the result of a
reprosecution of the rape charges than the prison sentence that
he received pursuant to the plea agreement.4 The Superior Court
judge subsequently reported the following question to the
Appeals Court, pursuant to Mass. R. Crim. P. 34, as amended, 442
Mass. 1501 (2004): "Do the protections from harsher punishment
established for 'Dookhan defendants'[5] in [Bridgeman v. District
Attorney for the Suffolk Dist., 471 Mass. 465 (2015) (Bridgeman
4 The two aggravated rape charges each carry a minimum
mandatory sentence of ten years which could be imposed
consecutively. See G. L. c. 265, § 23A.
5 Annie Dookhan was a chemist who engaged in widespread
evidence tampering at the William A. Hinton State Laboratory
Institute in the Jamaica Plain section of Boston (Hinton lab).
The evidence tampering affected tens of thousands of defendants
with drug convictions based on evidence tested at the Hinton
lab. See Bridgeman v. District Attorney for the Suffolk Dist.,
476 Mass. 298, 301-303 (2017) (Bridgeman II).
Dookhan defendants include those whose drug convictions
relied on drug certificates signed by Dookhan as a primary or
secondary chemist. See Commonwealth v. Scott, 467 Mass. 336,
354 (2014).
5
I),][6] apply to 'Farak defendants' who are challenging pleas
based upon Farak-related grounds relating to G. L. c. 279, [§ 25
(a)], predicate offenses?" We allowed the defendant's
application for direct appellate review and now broaden the
question to include any Farak-related predicate offenses that
resulted in enhanced sentences on subsequent convictions. See
Commonwealth v. Martinez, 480 Mass. 777, 783 (2018), quoting
McStowe v. Bornstein, 377 Mass. 804, 805 n.2 (1979).
2. Overview of the remedies for the misconduct of Dookhan
and Farak. Because the reported question involves a Farak
defendant and references a remedy provided to qualifying Dookhan
defendants, to answer it we must review the remedies provided to
each category of defendants.7
a. Remedy for Dookhan defendants. Dookhan, whose
wrongdoing at the William A. Hinton State Laboratory Institute
in the Jamaica Plain section of Boston (Hinton lab) was first
discovered in June 2011, was found to have engaged in egregious
6 As discussed infra, in Bridgeman I, 471 Mass. at 477, we
held that defendants who were granted a new trial based on
Dookhan's misconduct would not be faced with a more serious
offense or be given a more severe sentence than he or she
initially received.
7 We previously recounted details of the wrongdoing in
connection with Dookhan and Farak. See, e.g., Committee for
Pub. Counsel Servs., 480 Mass. at 705-720; Bridgeman II, 476
Mass. at 301-303. We will not repeat them here except to the
extent necessary to explain the difference between the remedies
offered to Dookhan defendants and Farak defendants.
6
misconduct over the course of two to three years by, among other
things, making "a number of affirmative misrepresentations by
signing drug certificates and testifying to the identity of
substances in cases in which she had not in fact properly tested
the substances in question." Commonwealth v. Scott, 467 Mass.
336, 348 (2014). In fashioning a remedy for Dookhan defendants
(who numbered in the thousands), we ultimately declined to
vacate their convictions wholesale, reasoning that as "serious
as [Dookhan's conduct] was, [it] did not result in irremediable
harm" to defendants' opportunities to obtain fair trials
(quotation and citation omitted). Bridgeman v. District
Attorney for the Suffolk Dist., 476 Mass. 298, 322 (2017)
(Bridgeman II). Further, "given the absence of any evidence of
misconduct by a prosecutor or an investigator, [we did not]
place Dookhan's misconduct in the category that requires a
stronger deterrent than a new trial to avoid the risk of
repetition." Id.
Instead, using our general power of superintendence, we
developed a framework to ascertain whether a Dookhan defendant
was entitled to a new trial on his or her drug conviction. See
Scott, 467 Mass. at 352. Ordinarily, a defendant is entitled to
withdraw a guilty plea by demonstrating that (1) egregious
government misconduct took place in connection with the
defendant's case and preceded the entry of the guilty plea; and
7
(2) the misconduct was material to the defendant's decision to
plead guilty. Id. at 346, citing Ferrara v. United States, 456
F.3d 278, 290 (2006). We determined that given the nature of
Dookhan's misconduct, Dookhan defendants would be able to
establish the first prong of the Ferrara analysis simply by
furnishing a drug certificate that she signed. Scott, supra at
353. These defendants still would have to meet the second prong
of the test, that is, to demonstrate that the misconduct
influenced the decision to plead guilty. Id. at 354.
As discussed in more detail infra, we also held that any
Dookhan defendant who succeeded in securing a new trial could
not be charged with a more serious offense, nor receive a longer
sentence than originally imposed (Bridgeman cap). Bridgeman I,
471 Mass. at 477.
b. Remedy for Farak defendants. The Amherst lab scandal
was larger in scope than Dookhan's wrongdoing at the Hinton lab.
Over the course of more than eight years, among other misdeeds,
Farak stole from the Amherst lab's stock of known
methamphetamine "standards" used for comparison with alleged
drugs. Committee for Pub. Counsel Servs. v. Attorney Gen., 480
Mass. 700, 706-707 (2018). She then turned to tampering not
only with drug samples assigned to her, but also with other
chemists' samples, stealing illegal narcotics submitted to the
Amherst lab for testing to fuel her own drug habit. Id. at 707-
 8
709. She also manipulated evidence and reports to conceal these
activities. Id. at 708-709. This misconduct was compounded by
the wrongful actions of members of the Attorney General's
office, who failed to investigate thoroughly Farak's wrongdoing
and later deliberately withheld information. Id. at 711-720.
Consequently, in contrast to the remedy created for Dookhan
defendants, we determined that for Farak defendants the "very
strong medicine of dismissal with prejudice [was] required."
Id. at 725. We therefore again exercised our broad powers of
superintendence to vacate and dismiss with prejudice thousands
of drug convictions that relied on evidence tested at the
Amherst lab during Farak's tenure there based on certain
criteria. Id. at 729.
Discussion. Although the convictions based on Farak's
misconduct (Farak convictions) have been dismissed with
prejudice, there is a category of Farak defendants for whom the
dismissed convictions nevertheless continue to have an adverse
effect. That is, there are some defendants, like the defendant
here, for whom a Farak conviction was counted as a predicate for
enhanced sentencing on subsequent charges prior to its
dismissal. As such, the now vacated convictions exposed this
category of defendants to enhanced penalties. We conclude that
such a result cannot stand.
9
In Bridgeman I, 471 Mass. at 475, we acknowledged that
"[i]n the ordinary course, when a defendant withdraws [a]
[guilty] plea after sentencing, [the defendant] may receive a
harsher sentence than was originally imposed" (citation and
quotations omitted). However, we also recognized that, in the
circumstances of the so-called Dookhan cases, "[a] return to the
status quo ante would mean ignoring the egregious misconduct of
Dookhan and disregarding its impact on criminal defendants whose
drug samples she analyzed." Id. In exercising our powers of
superintendence to hold that any potential sentence for a
Dookhan defendant who was granted a new trial would be capped at
the sentence originally imposed, we reasoned that without such a
cap, a Dookhan defendant would be forced to bear the burden of
the government's misconduct. Id. at 475-476. That is, the
Dookhan defendant would be placed in the untenable position of
either accepting a tainted conviction, or successfully
withdrawing a guilty plea and risking a greater punishment in so
doing. Id.
In addition, we recognized that a Dookhan defendant who
pleaded guilty and subsequently sought to withdraw a plea in
favor of moving for a new trial should not lose the benefit of
the agreement that the Dookhan defendant had made where
government misconduct would be the reason for seeking a new
trial in the first place. Id. at 477. In essence, without a
10
cap in place, the Commonwealth would have the advantage of
getting a "second bite at the proverbial apple in its efforts to
convict" a Dookhan defendant who won a new trial. Id. We
ultimately concluded that it would be wrong for Dookhan
defendants to bear the burden "of a systemic lapse that, in the
circumstances of the Hinton drug lab, we have said is entirely
attributable to the government, even though there is no
indication that prosecutors had actual knowledge of Dookhan's
misconduct during their prosecutions of the Dookhan defendants."
Id. at 476.
In comparison, the government misconduct associated with
the Amherst lab occurred over a longer period of time, affected
more defendants, and, unlike the Hinton lab scandal, did include
wrongdoing by prosecutors. See Committee for Pub. Counsel
Servs., 480 Mass. at 725. The remedy that we determined was
required as a result -- dismissal of the affected convictions
with prejudice -- was unprecedented in its scope.
Because the Farak convictions were dismissed with
prejudice, the sentencing cap that we created for Dookhan
defendants (who can be retried) is not applicable. However,
just as we concluded that a cap on subsequent charges and
sentences was appropriate for Dookhan defendants who are retried
on dismissed drug charges, we now conclude that a similar cap is
required in the case of Farak defendants who have been
11
negatively affected, albeit indirectly, by the use of the
convictions, tainted by Farak, as predicates for enhanced
sentencing.
There is no principled reason why a Farak defendant who has
been collaterally affected by more egregious government
misconduct should have to choose between accepting an outcome
based on a conviction that no longer exists and exposing himself
or herself to a harsher punishment than initially was imposed.8
The Appeals Court has recognized, in the context of the Ferrara-
Scott standard for obtaining new trials, that misconduct in
obtaining a conviction can taint the validity of subsequent
pleas predicated on the original misconduct. See Commonwealth
v. Williams, 89 Mass. App. Ct. 383, 389-390 (2016) ("To the
extent the defendant's plea resulted from a desire to avoid [an
elevated] sentence that would not have been permitted after the
[Dookhan-related] predicate offense was vacated, the defendant's
decision to plead guilty was not a correctly informed one").
See also Commonwealth v. Wallace, 92 Mass. App. Ct. 7, 12 (2017)
8 The sentencing cap for a defendant who succeeds in
withdrawing a guilty plea where a Farak-related predicate
offense exposed the defendant to an enhanced sentence will only
apply in a case where Farak's misconduct had a significant,
nonattenuated impact on the subsequent plea. This is because,
as discussed supra, one of the prongs a defendant must satisfy
to withdraw a guilty plea based on government misconduct is that
such misconduct was material to the decision to plead guilty.
See Scott, 467 Mass. at 346.
12
(acknowledging that "governmental misconduct in one case could
contaminate another case").
We cannot allow the damaging effects of the government's
egregious misconduct in Farak-related cases to live on, even as
the tainted convictions have been vacated, in the form of
predicates for enhanced sentences on subsequent charges. For
much the same reasons we created the Bridgeman cap for Dookhan
defendants who withdraw their pleas to Dookhan-related
convictions, we here apply an analogous cap to Farak defendants
who succeed in withdrawing guilty pleas where they were charged
with enhanced sentences predicated on now-vacated Farak
convictions.
We further conclude that this cap must be applied
retroactively for defendants who have already withdrawn such
pleas and subsequently pleaded guilty to more serious charges,
who were convicted of more serious charges at a trial, or who
received longer sentences than they had for their first pleas.
See Commonwealth v. Camacho, 483 Mass. 645, 650-651 (2019)
(applying Bridgeman cap retroactively in discretionary exercise
of superintendence powers). Just as we observed with respect to
Dookhan defendants, those Farak defendants who already may have
moved to withdraw their guilty pleas should not be placed "in a
substantively worse position" than those who withdraw their
pleas after this case is released. See id. at 651.
 13
Conclusion. In Scott, 467 Mass. at 352, we recognized that
Dookhan's misconduct "cast a shadow over the entire criminal
justice system." In comparison, the government misconduct
committed by Farak and members of the Attorney General's office
cast a shadow even longer and darker. In a continuing effort to
remedy that misconduct, we conclude that any potential sentence
on retrial for a defendant for whom a Farak conviction served as
a predicate offense for an enhanced penalty must be capped at
the sentence originally imposed when the defendant initially
pleaded guilty.9
The case is remanded to the Superior Court for further
proceedings consistent with this opinion.
So ordered.
9 Should the defendant here move to withdraw his plea, the
motion would require independent analysis. We express no
opinion as to the merits of such a motion. See Scott, 467 Mass.
at 346.