COMMONWEALTH vs. MICHAEL E. HART.

BOTSFORD, J. In February of 2009, the defendant pleaded guilty in the District Court to complaints charging him with disorderly conduct, G. L. c. 272, § 53, and resisting arrest, G. L. c. 268, § 32B. The following year, the defendant filed a motion for a new trial seeking to vacate his plea to the charge of resisting arrest; he argued in part that there was no factual

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basis for the crime. [Note 1] The same District Court judge who had taken the defendant's guilty plea heard the motion and thereafter denied it; [Note 2] the defendant appealed. A divided panel of the Appeals Court affirmed the denial of the defendant's motion, see Commonwealth v. Hart, 82 Mass. App. Ct. 448 (2012), and we granted the defendant's application for further appellate review. Essentially for the reasons set forth in the opinion of the dissenting Justices in the Appeals Court, see id. at 454 (Mills, J., dissenting, with whom Rubin, J., joined), we reverse.

Background. 1. The incident. [Note 3] On October 30, 2008, the defendant arrived at his apartment on Hemlock Street in New Bedford to find the police there, investigating a potential domestic disturbance. [Note 4] The defendant became excited, began yelling and cursing, and made numerous attempts to enter the apartment, despite being told by the officers to calm down and wait outside. Because the defendant continued to enter and interfere with the investigation, the officers escorted him outside, where a crowd had gathered, and told him that if he did not cease his actions, he would be subject to arrest. The defendant yelled, "Fuck that bullshit, you better not touch me motherfuckers, I don't like the fucking police," and he continued thereafter to yell and curse. He subsequently was arrested and charged by complaint with disorderly conduct and resisting arrest.

2. Plea hearing. On February 18, 2009, the defendant tendered guilty pleas to both charges at a hearing before a District Court judge. At the hearing, the prosecutor provided two summaries of the facts, each of which stated that the defendant had resisted arrest but neither of which explained how the defendant was claimed to have done so. [Note 5] The judge confirmed with defense counsel that the defendant was going to plead guilty despite the

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prosecutor's admission that it was difficult to infer what the defendant did to resist arrest. The defendant confirmed that he had discussed the charges with his counsel, and defense counsel affirmed that he had advised the defendant of the nature and elements of the offenses. The judge accepted the guilty pleas and sentenced the defendant on the two charges to concurrent sentences of three months in a house of correction, suspended for one year.

In November, 2009, the defendant was found in violation of his probation, and the judge imposed the suspended sentence of three months in a house of correction, which was deemed served. The defendant, represented by new counsel, filed a motion for a new trial on July 9, 2010, on grounds of ineffective assistance of counsel and errors in the guilty plea colloquy. On August 4, 2010, the plea judge denied the motion after hearing, and on January 3, 2011, denied the defendant's motion for reconsideration.

Discussion. 1. A defendant's motion for a new trial that seeks to withdraw a guilty plea is addressed to the plea judge's sound discretion, and we review the judge's decision for abuse of discretion or clear error of law. Commonwealth v. Russin, 420 Mass. 309, 318 (1995). Accord Commonwealth v. Furr, 454 Mass. 101, 106 (2009).

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2. For a guilty plea to be valid, it must be made voluntarily [Note 6] and intelligently. See Huot v. Commonwealth, 363 Mass. 91, 99 (1973). See also Boykin v. Alabama, 395 U.S. 238, 242-243 (1969). The intelligence requirement may be met in one of three ways: the judge may explain the elements of the crime to the defendant; the defendant's counsel may explain the elements of the crime to the defendant; or the defendant may "admit[] the facts constituting the crime . . . even if he is not aware that the facts he admit[s] are the elements of the crime." Commonwealth v. Colantoni, 396 Mass. 672, 679-680 (1986). See Henderson v. Morgan, 426 U.S. 637, 646 (1976); Commonwealth v. Furr, 454 Mass. at 107-108.

The defendant argues that Mass. R. Crim. P. 12 (c) (5) (A), as appearing in 442 Mass. 1511 (2004), imposes a separate and independent duty on the judge to determine that a sufficient factual basis exists for the charge. [Note 7] We agree.

A judge may not accept a guilty plea "unless there are sufficient facts on the record to establish each element of the offense." Commonwealth v. DelVerde, 398 Mass. 288, 297 (1986). See Commonwealth v. Loring, 463 Mass. 1012, 1013 (2012) ("A plea does not relieve the Commonwealth of its burden of proof, and if there is no factual basis for the crime charged, a fortiori, there can be no valid plea"). For this reason, as rule 12 (c) (5) (A) indicates, every plea hearing involves a two-part process in which the judge "must interrogate the defendant on the record to ascertain whether the plea and its

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concomitant waiver of rights are knowing, voluntary, and intelligent," and he "must also determine whether the defendant's admission, or his admission supplemented by the State's offer of proof, demonstrates a strong factual basis for the plea" (emphasis added). Commonwealth v. DelVerde, supra at 300 (citation omitted). See Commonwealth v. Jenner, 24 Mass. App. Ct. 763, 771 (1987). See also Commonwealth v. Jones, 60 Mass. App. Ct. 88, 90 n.2 (2003).

We agree with the dissenting Justices of the Appeals Court that the question whether a defendant's plea was voluntary and intelligent is separate and distinct from the question whether the record of the plea establishes a factual basis for the crime charged. Hart, 82 Mass. App. Ct. at 455 (Mills, J., dissenting, with whom Rubin, J., joined). For a guilty plea to be valid, both of these questions must be answered in the affirmative; contrary to the view of the Appeals Court, see id. at 450, the factual basis requirement is not necessarily satisfied so long as the record establishes, in one of the three permissible ways, see Commonwealth v. Colantoni, 396 Mass. at 679, that the plea was intelligent.

3. We turn to whether the record of the plea reflects a sufficient factual basis for the defendant's guilty plea to resisting arrest. It does not.

General Laws c. 268, § 32B (a), defines the crime of resisting arrest as follows:

"A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by: (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another."

The record of the defendant's plea hearing does not contain any evidence or statement of facts that would meet either of the statute's alternatives. All the prosecutor stated -- and the prosecutor was the sole source of factual information about the defendant's arrest -- was that the defendant, on encountering

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police at his apartment when he returned home, began to curse at the officers; the defendant was "excited"; when the officers removed the defendant from the apartment and brought him outside where a crowd was gathering, the defendant continued to "mouth off" and to "disturb the area"; and when the officers went to arrest him for this conduct, he "resisted" them. [Note 8] See note 5, supra. Nothing the prosecutor said suggested the defendant used force or threatened the use of force in connection with the arrest. Rather, the prosecutor specified, in response to a question by the judge, that the defendant did not strike anyone, and with respect to the defendant's cursing and "mouth[ing] off," as described by the prosecutor, the defendant's verbal tirade did not include any threat to use force. [Note 9] At the end of the

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day, all the record includes on this subject by way of facts is the prosecutor's twice-made statement that the defendant "resisted" the police when they went to arrest him. We do not accept the Appeals Court's view that the crime of resisting arrest is "self-explanatory," or that the word "resist" has a "commonly understood" meaning that makes the definition of "resisting arrest" obvious. See Commonwealth v. Hart, 82 Mass. App. Ct. at 453. See also Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 357 (2010). As recent cases decided by this court and the Appeals Court demonstrate, whether the crime of resisting arrest has been made out is an intensely factual, nuanced inquiry that must consider the nature of the defendant's conduct or actions and the sequence of those actions in relation to corresponding action by the police officers involved. [Note 10] In this case, the necessary facts are completely absent, and the defendant's guilty plea to that charge must be vacated.

Conclusion. We reverse the denial of the defendant's motion for a new trial and remand the case to the District Court for further proceedings.

So ordered.