COMMONWEALTH vs. ROBERT C. NOLAN.

KAPLAN, J. We hold that a judge of the Superior Court committed no error when, in the situation to be described, she denied a second postconviction motion of the defendant Nolan to withdraw his pleas of guilty and proceed to trial.

1. This is the second appearance of the case in our court. We leave a statement of the first appeal to n.4 below, and deal, in summary, with the record pertinent to the present appeal.

On April 1, 1982, indictments were returned against the defendant for armed assault in a dwelling with intent to commit a felony (G. L. c. 265, Section 18A) and assault and battery by means of a dangerous weapon (G. L. c. 265, Section 15A). On July 12,

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1982, before trial, the defendant offered to change his not guilty pleas to pleas of guilty. After a colloquy in open court, the judge accepted the pleas, and on August 16, 1982, she sentenced the defendant to imprisonment for ten to fifteen years on the first mentioned charge, and eight to ten years, concurrent, on the second.

Some fourteen months after sentence, we find the defendant moving under Rule 30(b) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 900 (1979), for a "new trial." [Note 1] This was on the ground that he had not offered the guilty pleas voluntarily or knowingly, in that the colloquy preceding the pleas failed to conform to the procedure set out in Mass.R.Crim.P. 12, 378 Mass. 866 (1979).

As explained in Commonwealth v. Foster, 368 Mass. 100, 108 nn.6 & 7 (1975), a defendant attacking a conviction based upon a guilty plea has a choice between two tactics. He may stand on the contemporaneous record, the record made in the case through the stage of the colloquy and conviction. If the defendant chooses this route, it is not open to the Commonwealth to introduce extraneous evidence tending to show that the defendant in fact acted freely and intelligently in tendering the plea. See Commonwealth v. Swift, 382 Mass. 78, 84 (1980). Alternatively, the defendant may offer extraneous evidence to supplement (or contradict) the record, but in that event the Commonwealth has a like right to offer evidence. In the present case the defendant elected the first alternative.

The colloquy of record went thus. Defendant's counsel stated that these were not "negotiated" pleas. The defendant offered his guilty pleas and, being sworn, answered questions put to him by the judge so that she might determine, as she said, whether his changes of plea were voluntary and knowing. He was twenty-two years of age, had no trouble with the English

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language, and had never been treated for mental illness, nor was he then mentally ill.

Then the assistant district attorney stated the facts that the Commonwealth was prepared to prove (defendant's counsel having no reservation):

In the early morning of October 25, 1981, the defendant telephoned the victim, his girlfriend, threatened her, and said he was coming over to her place. The victim called the police and they appeared promptly. Five minutes after they left, the defendant broke down the back door, entered the victim's bedroom, and stabbed her. Within ten minutes the police arrived. They found the defendant in the kitchen and arrested him. The knife was located in the kitchen and was identified by the victim. (Defendant's counsel did not wish to add to this recital.)

The defendant admitted his acts as stated, and said again that he wanted to plead guilty. The judge told him, and he indicated understanding, that he had an absolute right, if he chose, to a trial with or without a jury; by pleading guilty he was admitting the facts and leaving it to the judge to impose the appropriate sentences; the statutory penalties were such and such but the judge would not exceed the prosecutor's recommendations (and the prosecutor had not asked for an "on and after" sentence). The defendant acknowledged that he had not been induced to offer the pleas by any promises or threats or force. He had discussed the matter fully with his counsel who had fairly represented him and acted in his best interests. Finally, he was not confused and was making the pleas willingly, freely, and voluntarily. He had no questions that he wanted to ask the judge.

Thereupon the judge accepted the pleas and sentencing followed as indicated.

Upon the rule 30(b) motion, counsel attacked the conviction on the ground that the defendant was not advised during the colloquy about his waiver of rights of confrontation and against self-incrimination as set out in Mass.R.Crim.P. 12(c)(3)(A). [Note 2]

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The trial judge, considering the motion, reviewed the record, known to her at first hand. Upon findings, [Note 3] and with discussion of the law, she denied the motion, concluding that there was an affirmative showing, despite the breach of rule 12(c)(3)(A) which she regarded as minor, that the defendant acted freely and intelligently. The defendant took his appeal. [Note 4]

2. As a general proposition, a guilty plea may be withdrawn or nullified when it does not appear affirmatively that the defendant offered the plea voluntarily and knowingly. This is a doctrine of constitutional law. See Boykin v. Alabama, 395 U.S. 238, 242-243 (1969); Brady v. United States, 397 U.S. 742, 748 (1970); Commonwealth v. Foster, 368 Mass. at 106. Our rule 12, entitled "Pleas and Withdrawal of Pleas," especially at subdivision (c), announces a procedure by which the

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defendant submits, the defendant and the judge (with assistance of the lawyers) consider in the form of a colloquy, and the judge then rules on a guilty plea. The procedure is calculated to give reasonable assurance that a defendant is acting without coercion and with an understanding of what he or she is doing in tendering a plea.

Rule 12 should, of course, be followed faithfully, but it is not every omission of a particular from the protocol of the rule that entitles a defendant at some later stage to negate his plea and claim a trial. If there is a slip, and the defendant on that account seeks to withdraw his plea before sentence is imposed, he must furnish a reason (see Commonwealth v. Whitford, 16 Mass. App. Ct. 448, 449-450 [1983]), [Note 5] but the judge is apt to be relatively lenient toward him in considering the application (unless, perhaps, the Commonwealth can demonstrate prejudice to its interests through action by it in fair reliance on the plea). When, however, a judgment of conviction has entered on a guilty plea, and the defendant thereafter seeks to overthrow the conviction because of a claimed breach of some provision of rule 12, he will have greater difficulty; rightly so, for here an important policy, that of finality, must enter into consideration. This policy has especial weight in regard to convictions on guilty pleas which are, as is well known, the heavily preponderating percentage of all convictions. [Note 6] The distinction between a withdrawal before conviction and one attempted thereafter --

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in our practice the latter is by the motion under rule 30(b) -- was brought out strikingly in Commonwealth v. DeMarco, 387 Mass. 481, 484-487 (1982). [Note 7] A like distinction is observed in the Federal realm. [Note 8]

If the deviation from rule 12 did not significantly affect the substance of the particular requirement, the postconviction (or "collateral") attack surely fails. See Commonwealth v. DeMarco, 387 Mass. at 486; Commonwealth v. Johnson, 11 Mass. App. Ct. 835, 841 (1981); Commonwealth v. Cavanaugh, 12 Mass. App. Ct. 543, 545-546 (1981). Cf. Commonwealth v. Sullivan, 385 Mass. 487, 505-507 (1982); Commonwealth v. Perry, 389 Mass. 464, 471 (1983). [Note 9] On the

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other hand, the omission of an assurance integral to the satisfaction of the constitutional standard should be and is ground for withdrawal of the plea and allowance of a new trial. This is true of any case where the colloquy was so perfunctory or incomplete as to be in effect nugatory. See Commonwealth v. Foster, 368 Mass. at 102. Cf. Boykin v. Alabama, 395 U.S. at 244. In the recent case of Commonwealth v. Fernandes, 390 Mass. 714, 717-718 (1984), there was indeed a colloquy, but there was no inquiry about consultation with counsel or about coercion or other wrongful inducement of the guilty plea. Thus there was a failure of affirmative assurance on the key factors of understanding and voluntariness. In respect to voluntariness, the defendant had presented affidavits tending to show in circumstantial detail that there had been coercion, but the court was able to rest its decision for the defendant on the inadequacy of the record itself. See also Commonwealth v. Dawson, ante 221, 223 (1985).

3. The present problem is whether there was a fatal defect where the defendant was given to understand that he was waiving his right to a trial (including the jury right), but was not told expressly of the interstitial rights that were being concomitantly waived. In such cases we think there is no per se rule that operates to vitiate the plea (see our decision on the previous appeal, n.4 above); there must be some factor of hurt to the defendant to justify that result. This conclusion seems to us to follow from a number of considerations.

(a) We know out of hand that a guilty plea, otherwise meeting the requirements of being intelligent as well as voluntary, is not rendered constitutionally infirm by the fact that none of the specific legal rights involved in the waiver -- the trial right, right to confront witnesses, and right against self-incrimination -- is brought to the defendant's attention during the colloquy. This is made clear by the result of Brady v. United States, supra, and the decision in Commonwealth v. Morrow, 363 Mass. 601, 604-605 (1973). See also Commonwealth v.

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Jefferson, 4 Mass. App. Ct. 352, 356 (1976); 2 LaFave & Israel, Criminal Procedure Section 20.4 at 651-652 (1984). Cf. Commonwealth v. Earl, 393 Mass. 738, 740-741 (1985). The present case is, indeed, stronger for the Commonwealth than Brady because the trial right was specifically mentioned and it is, in fact, but a small step from a defendant's understanding about forgoing a trial to his realization, whether or not in the front of his consciousness, that he is also surrendering guaranties internal to the trial, in exchange for the advantages of the guilty plea. [Note 10]

(b) Even though the colloquy and acceptance of the guilty plea satisfied the constitutional measure, the argument remains that the colloquy was at such a level that, in going to conviction upon it, "justice may not have been done" --the criterion of rule 30(b). We can, however, fairly predicate that what is wanted from the colloquy is the basic assurances that the defendant, represented by counsel, with whom he has consulted, is free of coercion or the like, understands the nature of the crime charged, [Note 11] knows the extent of his guilt, recognizes the basic penal consequences involved, [Note 12] and is aware that he can

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have a trial if he wants one. [Note 13] The omission of reference to the intra-trial rights does not go to any of these essentials.

Our problem has arisen in the Federal courts and we can find a parallel, although not an exact one, in the Federal decisions. These point to the proposition that omission of reference to confrontation or self-incrimination in the colloquy called for by Fed.R.Crim.P. 11, [Note 14] when urged by way of collateral attack, will be ineffectual as ground for vacating the conviction unless it be shown with some plausibility that it would have made a difference to the defendant in deciding about a plea if he had been told about the intra-trial rights. See United States v. Nuckols, 606 F.2d 566, 568 (5th Cir. 1979); United States v. Hobson, 686 F.2d 628, 630 (8th Cir. 1982). See also United States v. Webb, 433 F.2d 400, 403 (1st Cir. 1970), cert. denied, 401 U.S. 958 (1971) (applying rule 11 in its pre-1975 form); United States v. Tursi, 576 F.2d 396, 399 (1st Cir. 1978) (same). [Note 15] There are decisions that adopt the position just stated with respect to the two rights even on direct appeal. See United States v. Michaelson, 552 F.2d 472, 477 (2d Cir. 1977); United States v. Saft, 558 F.2d 1073, 1080-1081 (2d Cir. 1977); United States v. Burnett, 671 F.2d 709, 711-713 (2d Cir.

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1982). See also United States v. Caston, 615 F.2d 1111, 1113-1115 (5th Cir.), cert. denied, 449 U.S. 831 (1980). But see United States v. Carter, 619 F.2d 293, 294-295 (3d Cir. 1980).

It is true that the Federal cases on collateral attack arose under Federal rule 32(d) where the stated standard was "manifest injustice," [Note 16] or under 28 U.S.C. Section 2255 (1982) (habeas corpus -- Federal custody; remedies on attacking sentence), where varying standards seem to be applied that may or may not be roughly equivalent to "manifest injustice." [Note 17] These are rigorous standards; but then we are reminded in the DeMarco case, 387 Mass. at 487, that our rule 30(b) standard is to be applied "rigorously." There may be some margin of difference, but it does not appear to be a crucial one. The defendant in the present case has not attempted any plausible showing of the materiality to him of the failure to mention the intra-trial rights. Such an attempt he might have made by using his alternative

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of producing extraneous evidence to be added to the contemporaneous record. [Note 18]

(c) As is usual upon a motion for a new trial under rule 30(b), the trial judge has a residual discretion. The judge may rule in favor of the defendant even where the defendant has not been able to furnish a specific indication of hurt. Reexamining the record of the colloquy on the plea, and retaining a memory of how it unfolded and of the reactions and behavior of the defendant on that occasion, the judge may be prepared to conclude that the defect in the plea does warrant relief. Compare Commonwealth v. Dawson, ante 221, 223 n.6 (1985). In the present case, a quite simple one on the facts, the judge did reflect on the plea proceedings, but was not moved to act in the defendant's favor. [Note 19]

4. We have here one of many appeals about attempted withdrawal of guilty pleas. These involve expenditures of time and effort by lawyers and judges, not to speak of the raising of hopes among prisoners, usually only to be dashed. All this could be minimized if not wholly avoided, and justice better and more humanely administered in the first instance, if judges permitted themselves to be assisted by the carefully drafted and fully inclusive model questionnaires that have long been available. [Note 20]

There is abroad the notion that the going system of bargained sentences -- the prevalent occasion for guilty pleas, although not present here -- is inherently undesirable, and that the safeguards of procedures such as our rule 12 or Federal rule 11 cannot purge the system. Whatever element of truth there may be in that observation, the prophylaxis, at least, can be

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improved by judges' referring to patterned questionnaires rather than risking omissions or other defects through improvisations on the spot. We do not suggest that any model should be followed mechanically; indeed such a practice would be unwise because it could interfere with a probing exchange. Nevertheless a model can serve as a guide and checklist. We would suggest, as well, that a duty is cast on the lawyers on both sides to be alert and helpful if it appears that the judge through inadvertence may not be carrying out the full requirements of the rule.

Order affirmed.