51 Mass. App. Ct. 904

March 22, 2001

In 1983, after completing a jury waiver form and admitting to sufficient Facts to warrant a finding of guilty, see Mass.R.Crim.P. 12(a)(3), 378 Mass. 866 (1979), the defendant was found guilty by a judge sitting in the "first-tier" session of the District Court, see Costarelli, petitioner, 378 Mass. 516 , 518 (1979), of possession of a class D substance (marijuana) with intent to distribute, G. L. c. 94C, s. 32C. He was given a suspended one-year sentence and placed on probation and did not thereafter pursue an appeal to the jury-of-six session under G. L. c. 218, s. 27A. More than thirteen years later, in April, 1997, in an apparent attempt to avoid enhancement of a sentence on a Federal conviction, the defendant sought a new trial on his 1983 conviction. His motion under Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979), was grounded on the undisputed fact that the judge had not conducted a colloquy to determine that the defendant's admission to sufficient facts was being made knowingly, intelligently, and voluntarily. Relying on Commonwealth v. Russell, 37 Mass. App. Ct. 152 (1994), cert. denied, 513 U.S. 1094 (1995), the motion judge denied the motion. We affirm.

1. In Commonwealth v. Mele, 20 Mass. App. Ct. 958 (1985), we held that a plea colloquy was required when a defendant admitted to sufficient facts at the first-tier session of a District Court and did not claim an appeal to the jury-of-six session. In Russell, however, we declined to give Mele retroactive effect and held that a defendant who had admitted to sufficient facts prior to Mele could not obtain a new trial simply by showing that he had not been given a plea colloquy. Rather, he must make a plausible independent showing that "justice may not have been done" within the meaning of rule 30(b). More specifically, a defendant must show "with some plausibility" that it would have "'made a difference [to him] in deciding about a plea' if the judge had engaged in a plea colloquy." Commonwealth v. Russell, 37 Mass. App. Ct. at 157, quoting from Commonwealth v. Nolan, 19 Mass. App. Ct. 491 , 499 (1985).

The showing made by the defendant here was, as noted by the motion judge, virtually identical to that found insufficient in Russell. See Commonwealth v. Russell, 37 Mass. App, Ct. at 157. While the defendant alleged that he never would have admitted to sufficient facts if he had been given a plea colloquy, this allegation was plainly of the self-serving, conclusory variety that the motion judge was not required to, and did not, accept. See Commonwealth v. Lopez, 426 Mass. 657 , 662 (1998); Commonwealth v. Pingaro, 44 Mass. App. Ct. 41 , 49-50 (1997).

2. The defendant's alternative argument - that Russell is not applicable to this case because the defendant here (unlike the defendant in Russell) admitted

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to sufficient facts in 1983 after Mass.R.Crim.P. 12(c)(3), 378 Mass. 867 -868 (1979), had been adopted and die Supreme Judicial Court had decided Commonwealth v. Duquette, 386 Mass. 834 (1982) - merits little discussion. As we noted in Russell, it was not until the decision in Mele in 1985 that any appellate court held that a plea colloquy was required when an admission to sufficient facts was made in the first rather than the second-tier session of the District Court. Commonwealth v. Russell, 37 Mass. App. Ct. at 156 n.4.

Order denying motion for new trial affirmed.

Alexander M. Esteves for the defendant.

Kajal K. Chattopadhyay, Assistant District Attorney, for the Commonwealth.