Commonwealth v. Cartagena (Lawyers Weekly No. 10-187-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11382 COMMONWEALTH vs. ANGEL CARTAGENA. November 12, 2013. Practice, Criminal, Plea. Constitutional Law, Plea. More than a decade after accepting the defendant’s guilty pleas on two criminal complaints, the same judge allowed the defendant’s motion to withdraw his pleas. The Appeals Court reversed. Commonwealth v. Cartagena, 82 Mass. App. Ct. 1118 (2012). We granted the defendant’s application for further appellate review. Commonwealth v. Cartagena, 464 Mass. 1102 (2013). We now vacate the judge’s order and remand for further proceedings. Background. In a complaint filed in the Central Division of the Boston Municipal Court Department in 1995, the defendant was charged with various offenses, including uttering a false instrument, larceny, and receiving stolen property; a separate complaint filed in 1996 also charged the defendant with larceny and uttering a false instrument. In 1996, a judge of the Boston Municipal Court accepted the defendant’s guilty pleas to the charges. Approximately fifteen years later, the defendant filed a motion to withdraw his guilty pleas on the ground that the plea judge did not “conduct a sufficient colloquy regarding his rights to a trial by a jury or by a judge.” An audio recording of the plea proceeding no longer exists. See Rule 15 of the Special Rules of the Boston Municipal Court Department Sitting for Criminal Business (LexisNexis 2012-2013) (referencing Rule 308 of the Special Rules of the Boston Municipal Court Department Sitting for Civil Business).[1] The defendant’s motion was accompanied by his own affidavit, but not by an affidavit from plea counsel nor by affidavits from other attorneys who practiced before the plea judge during the relevant period. At a hearing on the motion, the judge stated that he had no memory of the particular colloquy in this case, but declined to apply a presumption of regularity to the proceeding because he lacked confidence that his plea colloquy had been adequate. Discussion. “A judge should . . . not accept a plea unless satisfied that the plea is voluntary and that the defendant understands the nature of the charges.” Commonwealth v. Quinones, 414 Mass. 423, 431 (1993). When a guilty plea is challenged, it is ordinarily the Commonwealth’s burden to demonstrate that a plea was knowingly and voluntarily made. Commonwealth v. Lopez, 426 Mass. 657, 660 (1998), quoting Commonwealth v. […]