DocketNumber: No. 11-P-158
Citation Numbers: 82 Mass. App. Ct. 448
Judges: Meade, Mills
Filed Date: 9/20/2012
Status: Precedential
Modified Date: 6/25/2022
In 2009, the defendant pleaded guilty to a complaint charging him with disorderly conduct in violation of G. L. c. 272, § 53, and resisting arrest in violation of G. L.
1. Background. As revealed in the prosecutor’s recitation of the evidence at the plea hearing, which was supplemented by the police report offered by the defendant at the hearing on the motion for new trial,
When the defendant gained access a final time, the officers escorted him outside, called for backup, and told the defendant that if he did not cease his actions, he would be arrested. The defendant then began yelling, “Fuck that bullshit, you better not touch me motherfuckers, I don’t like the fucking police.” The defendant did not calm down and continued to disturb the area, and when the officers “went to place him under arrest. . . , he resisted their arrest.” In an earlier portion of the prosecutor’s recitation, he stated that when the officers asked the defendant to calm down, the defendant “continued to mouth off to the police and then he resisted a little bit when they went to arrest him.”
2. Discussion. “A plea of guilty and the ensuing conviction
The basic permissible record indicators of an intelligent admission of guilt are “(1) an explanation by the judge of the elements of the crime; or (2) a representation that counsel has explained to the defendant the elements he admits by his plea; or (3) defendant’s statements admitting facts constituting the unexplained elements.” Commonwealth v. Sherman, 451 Mass. 332, 335 (2008), quoting from Commonwealth v. Colantoni, 396 Mass. 672, 679 (1986). See Henderson v. Morgan, 426 U.S. 637, 646 (1976); Smith, Criminal Practice and Procedure § 23.65 (3d ed. 2007).
a. Counsel explained the elements. If there was an insufficient factual basis in the prosecutor’s recitation of the facts that purported to constitute the crime of resisting arrest, the analysis does not stop there. What the defendant and the dissent fail to consider is that a sufficient recitation of the facts admitted by the defendant is but one of three independent methods of demonstrating that a plea is intelligent. See Commonwealth v. Sherman, supra. See also Commonwealth v. Furr, 454 Mass. 101, 107 (2009) (intelligence of guilty plea may be established by any one of three methods).
In support of its conclusion that reversal of a conviction stemming from a guilty plea is required when the recited facts do not support the elements of the crime, the dissent relies on Commonwealth v. DelVerde, 398 Mass. 288, 296-297 (1986), but that reliance is misplaced. DelVerde did not reshuffle the due process deck relative to guilty plea requirements. Rather,
b. Sufficient factual basis. Although we need go no further, we note our disagreement with the defendant’s claim, accepted by the dissent, regarding the sufficiency of the factual basis that supported the guilty plea. The defendant claims that no facts existed to support the crime of resisting arrest. Similarly, the dissent concludes that there was no evidence that the defendant “mouthed off” or was “disturbing the area” after the arrest whs effectuated or that the defendant’s conduct rose to the level of using or threatening to use physical force or violence against the police. But both claims take too narrow a view of the facts and the law. As a starting point, a reasonable person, once warned to stop his interference with an investigation or face arrest, who then continues to interfere and make profanity-laden threats of his dislike of the police and directing them not to touch him in no uncertain terms, would have known he was being arrested. See Commonwealth v. Grandison, 433 Mass. 135, 145-146 (2001) (occurrence of arrest measured objectively).
The dissent views too narrowly when an arrest is effectuated and thus excludes from consideration the defendant’s words and actions occurring after the point in time in which the dissent deems that arrest to have been effectuated. As we have held, “[f]or purposes of G. L. c. 268, § 32B, the act of preventing, or attempting to prevent, the effecting of an arrest does not invite a snapshot of a moment in time that is deemed to be ‘the arrest’ after which the defendant’s behavior becomes wholly irrelevant.
Here, the defendant’s abusive and belligerent behavior, coupled with his interference with the investigation, which was twice described as “resisting,” was sufficient to constitute resisting arrest under either method provided by the statute. In addition, as we stated in Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 357 (2010), the crime of resisting arrest is self-explanatory. The dissent endeavors to reject this notion with an explanation based on Tavernier’s conduct in that case, instead of demonstrating why this is not a commonly understood phrase, which we believe it to be. While “resisting arrest” has a legal connotation, to “resist” carries as much, if not more, of a commonly understood meaning as does “rape.” See Commonwealth v. Sherman, 451 Mass. at 336-338 (admission he “forcibly raped” victim sufficient to satisfy missing element — sexual intercourse — based on common meaning of the term). Indeed, Webster’s Third New International Dictionary 1932 (2002), defines “resist” as to “withstand the force or effect of: to be able to repel or ward off”; “to exert oneself to counteract or defeat: strive against: oppose.” Indeed, “resisting arrest” appears as an example of the word’s use. Ibid. See Commonwealth v. Wiswall, 43 Mass. App. Ct. 722, 723 (1997) (phrase “assault with intent to kill” in guilty plea self-explanatory on element of intent); Commonwealth v. DeCologero, 49 Mass. App. Ct. 93, 97 (2000) (judge’s use of term “marketing,” along with statement as to amount Commonwealth would be required to prove, made cocaine trafficking charge self-explanatory).
The defendant received, as due process required, “real notice of the true nature of the charge against him.” Henderson v. Morgan, 426 U.S. at 645, quoting from Smith v. O’Grady, 312 U.S. 329, 334 (1941). The denial of the motion for new trial was not “manifestly unjust.” Commonwealth v. Grant, 426
Order denying motion for new trial affirmed.
Order denying motion for reconsideration affirmed.
The defendant does not challenge his disorderly conduct conviction.
The defendant supplemented the record with the police report, from which the prosecutor read during the guilty plea colloquy. See Commonwealth v. Nolan, 19 Mass. App. Ct. 491, 492 (1985).
The defendant does not claim his plea was involuntary. Nor does he alleged that he was unaware of the intratrial rights he was forgoing by pleading guilty, or that his plea was made without a “sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970). See Boykin v. Alabama, 395 U.S. 238, 243 (1969).
In support of its conclusion that reversal of a conviction based on a guilty
At the hearing on the motion for new trial, the judge (who also accepted the defendant’s plea) noted that the transcript of the plea colloquy included some portions that were noted as “inaudible.” Based on his practice of what he asks “every time,” the judge specifically added that he asks whether defendants have been advised of the elements of the offense. The defendant does not challenge this.