DocketNumber: 17–P–833
Citation Numbers: 104 N.E.3d 684, 93 Mass. App. Ct. 1116
Filed Date: 6/21/2018
Status: Precedential
Modified Date: 7/24/2022
Twelve years after pleading guilty to one count of indecent assault and battery on a child under age fourteen
"Due process requires that a plea of guilty be accepted only where 'the contemporaneous record contains an affirmative showing that the defendant's plea was intelligently and voluntarily made.' " Commonwealth v. Scott,
The defendant claims that his guilty pleas were not intelligent and voluntary because he was not competent at the time. We disagree. He claims that the finding of competence during the plea colloquy was faulty because it was based on nothing more than the plea judge "eyeballing" him during the colloquy. However, the plea judge was aware of the finding of incompetence seven months prior. The plea judge observed and interacted with the defendant during the forty-five-minute colloquy, tailored the colloquy to account for the defendant's limitations, consulted with plea counsel, and asked if counsel was aware of any reason that the plea should not be accepted. Plea counsel told the plea judge that he believed that the defendant's competency issues were properly addressed during the colloquy and the plea judge determined that there was no basis for questioning the defendant's competence.
The defendant failed to raise a "substantial question of possible doubt" so as to require a further competency hearing. Commonwealth v. Field,
Contrary to the defendant's claim, his statements during the plea colloquy did not establish his incompetence, let alone did they require the plea judge to so find. In fact, the defendant maintained that "the victim lied about her age," but he did not challenge that she was a minor or that he touched her in an indecent manner. In that posture, the defendant demonstrated his understanding of the offenses to which he was pleading guilty. To the extent the defendant claimed that the touching was consensual, the assertion is not relevant. See Commonwealth v. Suero,
Order denying motion for new trial affirmed.
The defendant was indicted for rape of a child, but the Commonwealth reduced the charge.
The defendant's motion for new trial was not supported by an affidavit from plea counsel. Such an omission is significant. See Commonwealth v. Lynch,
We note that most of the concerns raised by the judge (not the plea judge) during the defendant's competency hearing related to trial-based concerns, and not those that arise during a guilty plea. For example, the judge was concerned about the defendant's ability to withstand cross-examination.
To the extent we do not address other issues raised by the defendant, "they 'have not been overlooked. We find nothing in them that requires discussion.' " Department of Rev. v. Ryan R.,