Commonwealth v. Corey Hutchins.

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
21-P-918
COMMONWEALTH
vs.
COREY HUTCHINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order of a Superior Court
judge denying his motion to withdraw his guilty pleas to a
series of firearms and property crimes. We reject the
defendant's first argument, that his plea counsel rendered
ineffective assistance when he failed to move to dismiss either
four counts of unlawful possession of a large capacity feeding
device or four counts of unlawful possession of a firearm on the
grounds that his convictions of each of those offenses violated
double jeopardy principles. We are likewise unpersuaded by his
second contention that the evidence presented in the course of
the plea colloquy was insufficient to support the defendant's
convictions. Accordingly, we affirm.
Background. We summarize the relevant procedural history.
In April 2015, the defendant was indicted in the Superior Court
for twenty crimes: two counts of trafficking in firearms, G. L.
c. 269, § 10E (1); three counts of unlawful possession of a
firearm, G. L. c. 269, § 10 (a); six counts of unlawful
possession of a firearm, G. L. c. 269, § 10 (h); two counts of
unlawful possession of ammunition, G. L. c. 269, § 10 (h); four
counts of unlawful possession of a large capacity feeding
device, G. L. c. 269, § 10 (m); and three counts of receiving
stolen property, G. L. c. 266, § 60. The following January, the
defendant pleaded guilty to all twenty indictments and was
sentenced.1 In April 2021, the defendant moved to vacate his
pleas, pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435
Mass. 1501 (2001) (rule 30 [b]); the Commonwealth opposed the
motion.2 After a nonevidentiary hearing, the judge denied the
defendant's motion to withdraw his guilty pleas. This appeal
followed.
1 In each instance, the defendant was indicted as a habitual
offender under G. L. c. 279, § 25 (a); counts three through
thirteen charged the defendant as a prior offender with three
serious drug convictions. See G. L. c. 269, § 10G (c). As part
of the defendant's plea, the habitual offender enhancements were
dismissed and the § 10G enhancements were reduced. See G. L.
c. 269, § 10G (b). The sentencing enhancements are not at issue
in this appeal.
2 The Commonwealth did, however, concede that the defendant's
sentences on counts three through thirteen were illegal in light
of Commonwealth v. Resende, 474 Mass. 455, 469-470 (2016). The
defendant was resentenced on those convictions, and the
sentencing decisions are not part of this appeal.
2
Discussion. 1. Standard of review. In moving to withdraw
his guilty pleas, the defendant properly relied on rule 30 (b),
governing motions for new trial. See Commonwealth v. Fernandes,
390 Mass. 714, 715 (1984). We review a judge's decision on a
motion for new trial "to determine whether there has been a
significant error of law or other abuse of discretion."
Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), quoting
Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Allowance of
the motion for a new trial is appropriate only in extraordinary
circumstances. See Commonwealth v. Amirault, 424 Mass. 618,
645-647 (1997). We are mindful that the applicant for the new
trial carries the burden of proof to rebut the presumption of an
original fair trial and the valid entry of a guilty plea. See
Commonwealth v. Comita, 441 Mass. 86, 93-94 (2004). We accord
substantial deference to the motion judge's ruling where he also
presided over the defendant's pleas. See Commonwealth v.
Sylvain, 473 Mass. 832, 835 (2016).
2. Ineffective assistance of counsel. The defendant
contends that his convictions for unlawful possession of a large
capacity feeding device were duplicative of his convictions for
unlawful possession of a firearm where the firearms in question
depended on the use of the feeding devices for their ability to
fire. In other words, the defendant argues that because the
feeding devices were part of the firearms, he could not be
3
separately convicted for unlawfully possessing both the firearm
and the feeding device. For that reason, he argues that his
trial counsel was ineffective in failing to move to dismiss one
set of the indictments. Because we discern no double jeopardy
problem with the convictions at issue, we are satisfied that the
judge acted within his discretion in denying the defendant's
motion on that theory.
"Where a new trial is sought based on a claim of
ineffective assistance of counsel, the burden of proving
ineffectiveness rests with the defendant." Commonwealth v.
Montez, 450 Mass. 736, 755 (2008). To prevail, "the defendant
bears the substantial burden of demonstrating both that (1) the
conduct of his counsel fell 'measurably below that which might
be expected from an ordinary fallible lawyer,' and (2) this
conduct 'likely deprived the defendant of an otherwise
available, substantial ground of defence.'" Commonwealth v.
Henry, 88 Mass. App. Ct. 446, 452 (2015), quoting Commonwealth
v. Saferian, 366 Mass. 89, 96 (1974).
Contrary to the defendant's argument, there was no
prohibition against separate convictions of unlawful possession
of (1) a firearm under G. L. c. 269, § 10 (a) or § 10 (h), and
(2) possession of a large capacity feeding device under G. L.
c. 269, § 10 (m). "The traditional rule in Massachusetts, as
embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871) [],
4
and its progeny, is that 'a defendant may properly be punished
for two crimes arising out of the same course of conduct
provided that each crime requires proof of an element that the
other does not.'" Commonwealth v. Vick, 454 Mass. 418, 431
(2009), quoting Commonwealth v. Valliere, 437 Mass. 366, 371
(2002). Such is the case here. The crime of unlawful
possession of a large capacity feeding device requires an
element not required to prove unlawful possession of a firearm
under either § 10 (a) or § 10 (h) -- namely, that the defendant
possessed "a large capacity feeding device."3 G. L. c. 269, § 10
3 The defendant's reliance on Commonwealth v. Costa, 65 Mass.
App. Ct. 227 (2005), is misplaced. In contrast to the facts of
this case, the defendant in Costa was charged under § 10 (m)
with unlawful possession of a large capacity weapon, not, as
here, a large capacity feeding device, and with illegal
possession of a firearm. See id. at 235. We concluded that
where "[t]he only difference between the two violations is the
'capacity' of the firearm," the defendant's convictions for both
offenses were duplicative. Id. See G. L. c. 140, § 121
(defining "large capacity weapon" to include "any firearm"
meeting certain criteria). Commonwealth v. Rivas, 466 Mass. 184(2013), cited in the defendant's brief, is likewise
distinguishable.
5
(m).4 See G. L. c. 269, §§ 10 (a),5 10 (h) (1).6 An element of
possession of a firearm under § 10 (a) or § 10 (h) is possession
of a "firearm," which is not an element of § 10 (m). G. L.
c. 269, § 10 (m). See G. L. c. 140, § 121 (defining "firearm"
and "large capacity feeding device" for purposes of G. L.
c. 269, § 10). Neither offense is a lesser included offense of
the other because each has an element the other does not. See
Commonwealth v. Mazzantini, 74 Mass. App. Ct. 915, 916 (2009)
(mere fact that large capacity feeding device was component of
large capacity weapon did not preclude defendant from being
convicted and sentenced for simultaneous possession of both
items, where Legislature criminalized separate items
disjunctively).7
4 The elements of unlawful possession of a large capacity feeding
device are (1) knowing (2) possession (3) of a large capacity
weapon or large capacity feeding device (4) without a valid
license to carry firearms. See G. L. c. 269, § 10 (m).
5 The elements of unlawful possession of a firearm under § 10 (a)
are (1) knowing (2) possession (3) of a firearm (4) "without
. . . being present in or on his residence or place of business"
and (5) without complying with relevant licensing requirements.
G. L. c. 269, § 10 (a).
6 To prove illegal possession of a firearm under § 10 (h) (1),
the Commonwealth must show (1) ownership, possession, or
transfer (2) of a firearm (3) without complying with the
relevant licensing requirements. See G. L. c. 269, § 10 (h)
(1).
7 To the extent the defendant here reads our decision in Costa to
have turned on whether "the same feeding device was at issue for
both of those indictments," we do not agree. The Legislature
6
Given our conclusion that neither possession of a large
capacity feeding device nor possession of a firearm was a lesser
included offense of the other, we also conclude that any motion
to dismiss the indictments on the basis of double jeopardy would
have been futile; it was not ineffective assistance for plea
counsel not to have pursued a futile motion. See Commonwealth
v. Vieux, 41 Mass. App. Ct. 526, 527 (1996), cert. denied, 520
U.S. 1245 (1997). The judge did not abuse his discretion in
denying the defendant's motion to withdraw his pleas on this
basis.
3. Plea colloquy. At the hearing, the prosecutor
presented a summary of the evidence underpinning the twenty
indictments to which the defendant pleaded guilty. The
defendant contends that the facts recited by the prosecutor in
support of the indictments for illegal possession of a large
capacity feeding device and receiving stolen property were
insufficient. While we consider it a close question that could
have been avoided by a more fulsome recitation of the available
separately criminalized the possession of a large capacity
weapon without reference to whether the weapon was actually
fitted with a high capacity feeding device. See G. L. c. 140,
§ 121 ("'Large capacity weapon,' any firearm, rifle or shotgun:
. . . (ii) that is semiautomatic and capable of accepting, or
readily modifiable to accept, any detachable large capacity
feeding device" [emphasis added]).
7
facts, we ultimately are not persuaded that the prosecutor's
recitation was inadequate.
A judge shall not accept a plea of guilty unless the judge
is satisfied that "there is a factual basis for the charge."
Mass. R. Crim. P. 12 (c) (5) (A), as appearing in 442 Mass. 1511(2004). "However, by pleading guilty a defendant waives his
right to be convicted on proof beyond a reasonable doubt."
Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015).
"Therefore, the factual basis for a guilty plea need not satisfy
the [Latimore] standard of review." Id. The plea judge need
only determine "whether the evidence which [the judge] had
heard, plus any information [the judge] has obtained in the plea
hearing, is sufficient, when considered with reasonable
inferences which may be drawn therefrom, to support the charge
to which the defendant is offering a plea of guilty" (citation
omitted). Id.The defendant's challenge to the sufficiency of the
evidence supporting his pleas to the indictments for unlawful
possession of a large capacity feeding device focuses on the
knowledge element of that offense. He contends that "there was
no evidence that [he] knew beyond a reasonable doubt" that the
devices were capable of holding more than ten rounds of
8
ammunition.8 See G. L. c. 140, § 121 (defining "large capacity
feeding device" as one "capable of accepting . . . more than ten
rounds of ammunition"). Considering the question under the
correct standard, we are not persuaded. As part of the
colloquy, the judge heard that the defendant possessed the
firearms and feeding devices at issue as an illegal seller of
guns; from this, the judge could properly have inferred that the
defendant was generally familiar with weapons that he sold,
including their capacity. See Commonwealth v. Cassidy, 479
Mass. 527, 537-538, cert. denied, 139 S. Ct. 276 (2018). While
sparse, the facts read by the prosecutor, underscored by the
defendant's familiarity with the elements of the offenses
charged and his admission to them, were sufficient evidence on
the challenged elements of the indictments for illegal
possession of the large capacity feeding devices "to support the
charge[s]." Armstrong, 88 Mass. App. Ct. at 758.
Although we consider it another very close question, we
conclude likewise that the facts recited by the prosecutor
provided the judge with a sufficient factual basis for the
defendant's plea to three counts of receiving stolen property
8 As we have noted, the judge was not required to find the
elements of the offenses to which the defendant pleaded guilty
beyond a reasonable doubt, only that there was "a strong factual
basis for the plea" (citation omitted). Commonwealth v. Hart,
467 Mass. 322, 326 (2014).
9
over $250. The judge heard that undercover police officers used
a codefendant to broker the covert purchase of guns from the
defendant on two separate occasions.9 In the first sale, the
undercover officer bought three handguns of different calibers,
including two guns equipped with large capacity feeding devices,
for a total of $1,950. In the second sale, an undercover
officer bought five additional guns, all of differing
manufacture, including two large capacity feeding devices. The
prosecutor told the judge that one of the guns sold in the first
transaction, and two of the guns transferred in the second sale,
had been reported stolen. After he was arrested, the defendant
gave a statement to the police describing his sale of those
firearms.
The defendant's awareness that three of the firearms he
sold to the undercover police officers were stolen could be
inferred from the prosecutor's account that the defendant twice
covertly sold an assortment of different guns to the police, the
fact that the guns had been reported as stolen, and the
defendant's admission in his contemporaneous statement to the
police that he had sold those guns. See Commonwealth v. Quish,
356 Mass. 718, 719 (1969) (even absent evidence of recent theft,
judge could infer from quantity and nature of the goods with
9 Inferentially, these sales took place at the defendant's home.
10
which defendant was apprehended that defendant knew goods were
stolen). Similarly, the evidence that the defendant sold three
of the stolen guns for a total of $1,950 permitted the judge to
infer that the value per gun was at least $250. We are
satisfied that the judge's acceptance of the plea was founded on
a sufficient factual basis, see Armstrong, 88 Mass. App. Ct. at
758, and that he did not err in later denying the defendant's
motion to withdraw his guilty pleas based on the defendant's
argument to the contrary.
4. Lack of evidentiary hearing on motion. While an
evidentiary hearing is usually required on a motion under rule
30 (b) where a "substantial issue" has been raised,10
Commonwealth v. Chatman, 466 Mass. 327, 334 (2013), "[such a]
hearing may not be necessary . . . if the substantial issue
raised is solely a question of law, or if the facts are
undisputed in the record." Commonwealth v. Gordon, 82 Mass.
App. Ct. 389, 395 (2012). As we have discussed, the defendant's
claim of ineffective assistance was based on his claim that
certain of his convictions offended double jeopardy. That was a
question of law that the judge properly resolved without a
hearing. The defendant's remaining arguments were, necessarily,
10We accept the defendant's argument that a claim of ineffective
assistance generally qualifies as "a substantial issue."
Commonwealth v. Chatman, 466 Mass. 327, 334 (2013).
11
decided on the record of the plea colloquy, which was itself not
disputed. There was no error in the judge's deciding the
defendant's motion without holding an evidentiary hearing.
Order denying motion to
withdraw guilty pleas
affirmed.
By the Court (Sullivan,
Hand & Walsh, JJ.11),
Clerk
Entered: February 8, 2023.
11 The panelists are listed in order of seniority.
12