Commonwealth v. Andre Echevarria. ( 2023 )

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
22-P-700
COMMONWEALTH
vs.
ANDRE ECHEVARRIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the denial of his motion to
withdraw his guilty plea by a judge of the Suffolk Superior
Court (motion judge). The defendant was indicted on charges of
carrying a firearm without a license, third offense (count one);
possession of a firearm without a license (count two); and
carrying a loaded firearm without a license (count three).
With regard to count one, the defendant was also charged with
being an armed career criminal on the basis that he had
previously been convicted of two violent crimes and a serious
drug offense. See G. L. c. 269, § 10G. A jury was empaneled on
January 21, 2014, and trial was scheduled to continue on January
23. However, on January 23, following plea negotiations, the
defendant participated in a plea colloquy and pleaded guilty to
so much of count one as alleged carrying a firearm without a
license, second offense, and being a level one armed career
criminal, and count three. Count two was dismissed at the
request of the Commonwealth, as were the remaining portions of
count one. The defendant received the jointly recommended
sentence of from six to seven years in State prison on count one
and three years of probation on count three, to commence from
and after the sentence imposed on count one. Seven years later,
on October 25, 2021, the defendant filed a motion to withdraw
his guilty plea, arguing, inter alia, that that he was pressured
to complete the plea colloquy under the threat of having to
begin trial.1 That motion was treated as a motion for a new
trial and denied without a hearing. See Commonwealth v.
Resende, 475 Mass. 1, 12 (2016). On appeal, the defendant
argues that his motion for a new trial should have been granted
because his guilty plea was coerced as a result of the plea
judge's statement that his case would proceed to trial if he
could not confirm that he had received effective representation
from his counsel. We affirm.
Discussion. "A motion to withdraw a guilty plea is treated
as a motion for a new trial pursuant to Mass. R. Crim. P. 30
1 The defendant also argued that one of the underlying
convictions supporting the armed career criminal enhancement had
been subsequently vacated, after which a nolle prosequi was
entered with respect to that charge. However, he has not
renewed that argument here.
2
(b)." Resende, 475 Mass. at 12. "[A] judge should only grant a
postsentence motion to withdraw a plea if the defendant comes
forward with a credible reason which outweighs the risk of
prejudice to the Commonwealth." Commonwealth v. DeMarco, 387
Mass. 481, 486 (1982).
"For a guilty plea to be valid, it must be made voluntarily
and intelligently." Commonwealth v. Hart, 467 Mass. 322, 325
(2014), citing Huot v. Commonwealth, 363 Mass. 91, 99 (1973).
"To assess the intelligence and voluntariness of a defendant's
plea, we necessarily rely on the defendant's sworn responses to
the judge's informed questions made in the solemnity of a formal
plea proceeding." Commonwealth v. Hiskin, 68 Mass. App. Ct.
633, 638 (2007). "While not solely determinative of the
intelligence and voluntariness of a plea, the defendant's sworn
statements at colloquy have undeniable bearing and heft in
resolving a later claim to the contrary." Id. at 639, citing
Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 635–636 (2001).
"While '[t]he question whether a defendant was subject to
undue pressure to plead guilty must be considered in some manner
on the record . . . [n]o particular form of words need be used
in the required inquiry of a defendant.'" Commonwealth v.
Sherman, 451 Mass. 332, 338 (2008), quoting Commonwealth v.
Quinones, 414 Mass. 423, 434 (1993). "Any defendant who pleads
guilty does so under the weight of an assortment of pressures
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that are intrinsic to such a situation." Commonwealth v.
Bolduc, 375 Mass. 530, 536 (1978). "The recognition of these
pressures on the defendant is not enough, however, to render the
plea involuntary in a constitutional sense." Id.An appellate court "review[s] the allowance or denial of a
motion to withdraw a guilty plea to determine whether the judge
abused that discretion or committed a significant error of law."
Commonwealth v. Henry, 488 Mass. 484, 490 (2021), quoting
Commonwealth v. Camacho, 483 Mass. 645, 648 (2019). The
decision to deny such a motion lies within the sound discretion
of the judge and will be reversed only if it appears manifestly
unjust or where the proceeding was infected with prejudicial
constitutional error. See Commonwealth v. Williams, 71 Mass.
App. Ct. 348, 353 (2008), quoting Commonwealth v. Berrios, 447
Mass. 701, 708 (2006).
Here, we discern no abuse of discretion on the part of the
motion judge in his denial of the defendant's motion for a new
trial. During the plea colloquy, the plea judge and defendant
discussed the defendant's representation. We recite the
relevant portion of the exchange.
"Q: And do you think that he has fully and fairly
represented you at all time[s] and always acted in your
best interests?
A: No.
Q: You[] do not?
A: No.
Q: Can you explain that to [me], Mr. Echevarria?
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A: I just don't believe he has.
Q: Well, with regard to your change of plea, has he
represented you and counseled you fully and fairly[?]
A: I guess.
Q: You guess? Sir, I can't accept your change of plea to
guilty unless you can tell me that [plea counsel] has been
rendering effective assistance of counsel to you. If
you're not able to say that, then I'm going to proceed with
the trial, sir. You are entitled under the Constitution to
effective assistance of counsel. If you are telling me
that you have not been enjoying effective assistance of
counsel, then I'm going to bring the jury down and we're
going to proceed with the trial.
A: Well, under those circumstances, yeah, of course, he's
been wonderful.
Q: And do you mean that, sir? Am I hearing that you've
had some disagreements with him in the past?
A: Uh-hum.
Q: Is that true?
A: Yes.
Q: But as to this decision to plead guilty today, do you
believe that he has rendered you effective assistance of
counsel?
A: Yes.
Q: Do you believe that he has fully and fairly represented
you with regard to your change of plea today?
A: Uh-huh.
Q: And do you think that he has acted in your best
interest in counseling you whether or not to change your
plea to guilty today?
A: Uh-hum.
Q: Is that a yes?
A: Yes."
That the defendant may have been unhappy with his attorney
is evident. When the defendant expressed that unhappiness by
stating that his counsel had not fully and fairly represented
him at all times, the plea judge properly inquired more deeply
into the meaning of his assertion. See Hiskin, 68 Mass. App.
Ct. at 638–639. When asked to explain himself, he could not
articulate any specific shortcoming in his counsel's
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representation. In response to further inquiry, and before the
plea judge stated anything regarding his impending trial, the
defendant stated that "[he] guess[ed]" he received effective
representation. Although the defendant used language that
continued to express his unhappiness with the proceedings, this
statement was a clear affirmation of the effectiveness of the
representation the defendant received from his plea counsel
prior to any statement by the plea judge regarding the impending
trial. See Sherman, 451 Mass. at 338. See also Hiskin, 68
Mass. App. Ct. at 638–639. The plea judge explained to the
defendant that he is entitled under the Constitution to
effective assistance of counsel, and that, if he had not
received such assistance, he had the option of proceeding to
trial in lieu of pleading guilty. Whatever pressure the
defendant might have felt as a result of his impending trial is
of no issue, as all defendants face the possibility of trial
when determining how to plead. See Bolduc, 375 Mass. at 536.
The plea judge continued to question the defendant regarding his
impression of plea counsel's representation, and on further
clarification, the defendant repeatedly stated clearly that be
believed he had received effective assistance.2 We discern no
2 To support his motion for a new trial, the defendant submitted
an affidavit asserting that he was "unnerved by the Court's
insistence that we would proceed to trial" and so he "panicked
and responded to her questions with answers that would cause her
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abuse of discretion in the motion judge's denial of the motion
for a new trial given these facts. See Williams, 71 Mass. App.
Ct. at 353.
Order dated December 17,
2021, denying motion to
withdraw guilty plea
affirmed.
By the Court (Henry,
Desmond & Englander, JJ.3),
Clerk
Entered: July 5, 2023.
to accept the plea and avoid trial that day." The motion judge,
however, "was free to reject [these assertions] as self-serving
and contradictive of previously sworn professions." Hiskin, 68
Mass. App. Ct. at 640.
3 The panelists are listed in order of seniority.
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