defendant’s request for leave to obtain direct …
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COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
WORCESTER COUNTY DAR - APPEALS COURT NO. 2018-P-0824 ___________________________________ ) COMMONWEALTH OF MASSACHUSETTS ) ) v. ) ) EZARA WENTWORTH ) ___________________________________)
DEFENDANT’S REQUEST FOR LEAVE TO OBTAIN DIRECT APPELLATE REVIEW
Defendant Ezara Wentworth applies pursuant to Mass.
R. A. P. 11 for direct appellate review of an order of
the Worcester Superior Court denying his Motion To
Vacate Armed Career Criminal Conviction And Sentence,
and Motion For a New Trial, wherein he sought relief
from a conviction and sentence imposed under G. L. c.
269, § 10G, commonly referred to as the Massachusetts
Armed Career Criminal Act (hereinafter “Mass. ACCA”).
As relevant here, G. L. c. 269, § 10G imposes
mandatory-minimum sentence enhancements upon defendants
who have been “previously convicted of a violent crime.”
G. L. c. 269, § 10G. This case raises urgent issues of
first impression concerning the proper interpretation
1
Supreme Judicial Court for the Commonwealth DAR: DAR-26396 Filed: 9/26/2018 10:14 AM
and application of the force and residual clauses, which
define the term “violent crime.” G. L. c. 140, § 121.
First, does this Court’s decision in Beal,
invalidating the residual clause of the Mass. ACCA,
apply retroactively to cases on collateral review? See
Commonwealth v. Beal, 474 Mass. 341 (2016); Welch v.
United States, 136 S.Ct. 1257, 1265 (2016)(rule
invalidating the residual clause of the Federal Armed
Career Criminal Act (“F.ACCA”) applies retroactively on
collateral review).
Second, under the force clause, does the use of
physical force against the person of another require
proof of an intentional, not merely a reckless, mens
rea? See United States v. Windley, 864 F.3d 36, 38 (1st
Cir. 2017)(so holding); cf. Leocal v. Ashcroft, 543 U.S.
1, 9 (2004); United States v. Fish, 758 F.3d 1, 16 (1st
Cir. 2014) (“we agree with ten Circuits that reckless
conduct bereft of an intent to employ force against
another falls short of the mens rea” required to show
“use” of force under 18 U.S.C. § 16(b)).1
1Despite dicta suggesting otherwise, neither this Court nor the Appeals Court has considered this question. In Eberhart, this Court noted in dicta that reckless A&B has as an element “’physical force’ sufficient to implicate the sentencing enhancement.” Commonwewalth v. Eberhart, 461 Mass. 809, 818-819 (2012). Eberhart did
2
Third, under the force clause, do Due Process, the
statutory text, and this Court’s precedents demand a
categorical, elements-only analysis of the prior offense
of conviction, an analysis that prohibits post-jeopardy
factual finding about the conduct allegedly underlying
the prior conviction? See Mathis v. United States, 136
S. Ct. 2243, 2252-2253 (2016)(prohibiting inquiry into
conduct); Descamps v. United States, 570 U.S. 254, 260-
262 (2013)(same); accord Eberhart, 461 Mass. at 815-16;
Beal, 474 Mass. at 353; but see Commonwealth v. Mora,
477 Mass. 399, 408 (2017)(whether unarmed robbery
qualified as a violent crime under force clause required
some evidence of defendant’s actual conduct).
Fourth, is an intentional mens rea an element of
either assault & battery (“A&B”) or resisting arrest
(“R.A.”) or instead just one means of satisfying a
not tackle the phrases “use” and “against the person of another.” See id. Like Eberhart, Rezendes was decided before this Court invalidated the residual clause, and it merely noted that, at least in that case, there was no dispute that ABDW would qualify as a violent crime under the Mass. ACCA, which then included the residual clause. Commonwealth v. Rezendes, 88 Mass. App. Ct. 369, 372 (2015). Widener repeated dicta from Eberhart in noting that “reckless battery has an element of physical force,” but did not address what mens rea is necessary for a crime to have as an element the use of physical force against the person of another. Commonwealth v. Widener, 91 Mass. App. Ct. 696, 702-703 (2017).
3
single, indivisible mens rea element? See Commonwealth
v. Mistretta, 84 Mass. App. Ct. 906, 907 (2013)
(“reckless” and “intentional” are indivisible means of
satisfying a single mens rea element of ABDW); contrast
United States v. Tavares, 843 F.3d 1, 16 (1st Cir. 2016)
(under F.ACCA, reckless and intentional are each
divisible mens rea elements of Mass. ABDW because
“Mistretta was wrongly decided” under SJC precedents);
see also United States v. Faust, 853 F.3d 39, 54 (1st
Cir. 2017)(an intentional use of force is not an element
of Mass. resisting arrest).
Resolution of the issues raised here is necessary
to resolve not only the defendant’s appeal and other
cases pending in the lower courts;2 it is also necessary,
for reasons elaborated below, to prevent the careless,
capricious application of a poorly understood law that
accounts for hundreds of years of lost liberty.
For these reasons and those discussed below, the
defendant hereby requests direct appellate review.
2Appeals raising one or more of these issues are pending in the following matters: Commonwealth v. Rivera, Hampden Superior Court No. 1779CR00447; Commonwealth v. Morales, Hampden Superior Court No. 1679CR00590; Commonwealth v. Davoren, Franklin Superior Court No. 1578CR00043; Commonwealth v. Miele, Middlesex Superior Court No. 1281CR01402; Commonwealth v. Tillery, Bristol Superior Court No. 1073CR01445.
4
Respectfully Submitted, Ezara Wentworth, By his attorney, /s/ Jessica LaClair
___________________ Jessica LaClair BBO# 675350 P.O. Box 1215 Northampton, MA 01060 (413) 727-8855 [email protected] Dated: September 26, 2018
CERTIFICATE OF SERVICE I, Jessica LaClair, counsel for the defendant, hereby certify that on September 26, 2018, I caused the Defendant’s application for direct appellate review to be served by U.S. mail upon ADA Jane Sullivan, Office of the District Attorney/Worcester, 225 Main St. Room G-301, Worcester, MA 01608. /s/ Jessica LaClair
_______________________ Jessica LaClair
5
COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT
WORCESTER COUNTY DAR - APPEALS COURT NO. 2018-P-0824 ___________________________________ ) COMMONWEALTH OF MASSACHUSETTS ) ) v. ) ) EZARA WENTWORTH ) ___________________________________)
MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR DIRECT APPELLATE REVIEW
I. STATEMENT OF PRIOR PROCEEDINGS3
On April 11, 2011, a Worcester County grand jury
returned 10 indictments against the defendant:
1. A&B on a Police Officer, G. L. c. 265, § 13D;
2. Carrying a Loaded Firearm, G. L. c.269, § 10(n);
3. Firearm with Defaced Serial No., G. L. c.269, § 11C;
4. Vandalizing Property, G. L. c.266, § 126A;
5. Negligent Operation of a Motor Vehicle, G. L. c. 90, § 24(2)(a);
6. Operating on Suspended License, G. L. c. 90, § 23;
3Attached and cited as follows are: the docket (D/page #), the ACCA indictments (Att.A), the judge’s order denying relief (Att.B), the plea colloquy (T/page #); the defendant’s post-conviction motion (Motion/page #); and the Commonwealth’s Opposition to the motion (Opp./page #).
6
7. Failure to Stop for Police, G. L. c. 90, § 25;
8. Resisting Arrest, G. L. c. 268, § 32B;
9. Firearm Violation with 3 Prior Violent Crimes, G. L. c. 269, § 10G(c); and,
10. Firearm Violation with 3 Prior Violent Crimes, G. L. c. 269, § 10G(c).
D/2, 4.
A pretrial motion to suppress was filed on February
29, 2012, and denied on March 22, 2012. D/4.
On May 13, 2013, Count 10 was amended to the lesser
included offense of having one prior violent crime, and
Mr. Wentworth pleaded guilty the same day to Counts 1-6,
8, and 10, supra. T/4, 30-31. Counts 7 and 9 were
dismissed. T/4. Mr. Wentworth was sentenced to three to
seven years on Count 10 and concurrent terms of five
years probation on all remaining counts, to run on and
after. T/31.
On September 14, 2017, Mr. Wentworth filed a pro se
Motion to Vacate Armed Career Criminal Conviction And
Sentence And Motion For a New Trial, with an Affidavit
of Ezara Wentworth, and two Exhibits (the Indictment and
Grand Jury minutes). The Commonwealth filed an
Opposition on April 3, 2018. D/8. On April 23, 2018, the
defendant’s motion was denied without a hearing.
(Ricciardone, J.). Att.B.
7
A timely notice of appeal was filed and the case
was docketed in the Appeals Court on June 6, 2018. On
September 17, 2018, undersigned counsel filed an
appearance. The defendant’s brief is due November 14,
2018.
8
II. STATEMENT OF FACTS RELEVANT TO THE APPEAL
On the night of February 13, 2011, police
encountered Mr. Wentworth on Fox Street, in Worcester,
behind the wheel of a car he had borrowed that night
from a friend. T/14, 29. He was parked in the middle of
the street and blocking an officer’s path. T/14. When an
officer approached on foot in order to question him, he
took off. T/12. A nearby cruiser pursued Mr. Wentworth.
T/14. During the pursuit, Mr. Wentworth struck a vehicle
parked in the road, lost control of the car, hit a
snowbank, went airborne, and flipped the car. T/15. The
pursuing officer was right there. As Mr. Wentworth
extricated himself from the crash and looked at the
officer, the officer drew his gun. T/15. Mr. Wentworth
ran. T/15. He was caught quickly. T/15. As he was
brought down by two officers (one of whom used his gun
to break Mr. Wentworth’s nose), he struck an officer in
the face. T/16; Motion, Affidavit, ¶¶7-9. On account of
this incident, and the discovery of a handgun in his
friend’s totaled vehicle, Mr. Wentworth faced a minimum-
mandatory sentence of 30 years in prison.4 T/16, Att A.
4Under the circumstances, it is not hard to understand why a young black man like Mr. Wentworth might have thought flight was the best course. See e.g., Commonwealth v. Warren, 475 Mass. 530, 539-540 (2016).
9
The grand jury returned two Level III ACCA
indictments on April 21, 2011, one premised on
possession of the firearm found in the car, and one
premised on possession of the ammunition found in the
firearm found in the car, each carrying a 15-year
mandatory-minimum. G. L. c. 269, § 10G(c). Att.A. Both
indictments alleged Mr. Wentworth,
“had previously been convicted of three violent crimes or three serious drug offenses, or any combination totaling three or more.”
Att.A. As to the previous convictions, both indictments
were blank. Att. A. Trial counsel did not file a motion
to dismiss either ACCA indictment for failing to set
forth any of the prior convictions.
In support of the ACCA indictments, the grand jury
heard the following testimony from the officer who had
pursued Mr. Wentworth:
Q: -- I want to direct your attention to a document I have before me. Would that appear to be [Mr. Wentworth’s] criminal history? A: Yes.
...
Q: And back on November 21, ’08, does it show a finding of guilty on resisting arrest? A: Yes.
Q: And on that same date does it show a finding of guilty on carrying a dangerous weapon?
10
A: Yes.
Q: And both of those would have been in Worcester District Court? A: Yes.
Q: And then in Leominster District Court on or about May 22, 08, does it show a guilty for resisting arrest? A: Yes.
Q: And then in Worcester District Court does it show a guilty for an assault and battery on or about August 30, 05? A: Yes.
Q: And again August 30, 05, a separate complaint for assault and battery? A: Yes.
Q: Also in the Worcester District Court?
A: Mm-hm.
Q: So at the time of being charged with carrying a firearm on February 13, 2011, he had at least three prior crimes of a violent nature? A: Yes.
GJ/15-17.
Although Colon and Eberhart were decided long
before Mr. Wentworth’s plea, see Commonwealth v. Colon,
81 Mass. App. Ct. 8 (2011); Eberhart, 461 Mass. at 809;
and both held A&B was not a categorically violent crime
under the Mass. ACCA, trial counsel did not move to
dismiss either of the Level III ACCA indictments for
11
failing to present evidence the previous convictions,
including the A&B predicate, were “violent crimes.” G.
L. c. 140, § 121.
Before the plea, trial counsel told Mr. Wentworth
that his prior convictions for A&B, Resisting Arrest,
and Carrying a Dangerous Weapon all qualified as violent
crimes under the ACCA. Motion, Affidavit ¶25.
On May 13, 2013, Mr. Wentworth pled guilty on Count
10 to possession of a firearm having one prior
conviction of a violent crime. T/31. In support of the
predicate, the Commonwealth stated:
“As the predicate offense, he was convicted in 2005 of a domestic assault and battery, Docket Number 05-626094, Worcester District Court. The allegations of that domestic, for the A&B predicate, we have to show violence; that he, on or about July 13, 2005, he struck his girlfriend at the time in the face and shoved her down on the bed. Those are the allegations of assault and battery to which he pled guilty.”
T/16-17. (At the time, Mr. Wentworth was eighteen).
GJ/15.
Before taking the plea, the judge asked Mr.
Wentworth, “Has anyone intimidated you or pressured you
in any way to plead guilty?” T/22. He replied,
“Just the charges, but that’s my own – no one said it to me. I just feel that’s my best decision...so, yes.”
T/22.
12
After Beal was decided, Mr. Wentworth moved for
relief from his ACCA conviction and sentence. As set
forth in Section III, infra, he argued that the ACCA
indictment and plea were jurisdictionally defective
where: i) the indictment did not set forth the alleged
ACCA predicates; ii) in light of Beal’s invalidation of
the residual clause, none of the alleged predicates
mentioned during the grand jury proceedings are violent
crimes under the ACCA; and iii) (even if they were), in
light of Beal, evidence before the grand jury failed to
support probable cause for the ACCA indictment. See
Motion/1-7. He also argued that, for similar reasons,
including the invalid threat of a 15-year mandatory
minimum sentence, the plea was not intelligent and
voluntary; and counsel was ineffective for giving
incorrect advice concerning the ACCA charges. Id.
In its Opposition, the Commonwealth argued that
“harmful battery and reckless battery” qualify as
violent crimes under the force clause. Opp./9. According
to the Commonwealth, Mr. Wentworth’s admission to being
previously convicted of A&B based on an allegation that
he “struck his then girlfriend in the face and shoved
her down on the bed” established that he “committed a
violent crime,” and that the plea was intelligent.
13
Opp./9-10; see T/17 (“Those are the allegations...to
which he pled guilty.”) The Commonwealth did not address
the remaining claims.
In his order denying the motion and denying an
evidentiary hearing, the plea judge stated:
“Nothing in the record of this case, including the defendant’s recent submissions, undermines my conclusion of almost five years ago that Ezara Wentworth pled guilty to the indictments voluntarily, intelligently and knowingly. Additionally, the predicate conviction was unquestionably “violent”., [sic] so the argument as to ineffective assistance fails. Finally, there was as [sic] express waiver of any challenge to the Grand Jury presentation here (not to imply merit to any such motion). No substantial issue has been raised by the defendant’s motion or affidavit to suggest that justice was not done in my acceptance of the agreed upon plea. MRCP 30(b), 30(c)(3).”
Att. B.
14
III. ISSUES OF LAW RAISED BY THE APPEAL
1. Must allegations of prior convictions under G. L. c. 269, § 10G be set forth in an indictment? Is the failure to do so a jurisdictional defect that can be raised at any time?
This issue was raised in the defendant’s Motion. 2. Does this Court’s decision in Beal apply
retroactively so as to invalidate the ACCA indictments and the defendant’s ACCA plea?
This issue was raised in the defendant’s Motion. 3. Do any of the predicate crimes alleged here – A&B,
Resisting Arrest, or Carrying a Dangerous Weapon - qualify as violent crimes under the Mass. ACCA’s force clause?
This issue was raised in the defendant’s Motion. The following issues were touched on and/or raised by necessary implication, where the Commonwealth countered that factually reckless batteries qualify as violent crimes under the force clause.
a. In considering whether a prior conviction is a “violent crime” under the force clause, is a court required to consider only the elements of the prior offense?
b. Does the use, attempted use, or threatened use of
physical force or a deadly weapon against another require proof of an intentional, and not merely reckless, mens rea?
4. Was the defendant’s plea unintelligent and
involuntary where it was premised on three predicates that are not violent crimes, counsel gave incorrect advice, and where the grand jury plainly heard insufficient evidence any of the predicates qualified as violent crimes under either the force or residual clauses of the Mass. ACCA?
This issue was raised in the defendant’s Motion.
15
IV. Assault & Battery and Resisting Arrest do not qualify as violent crimes under the Mass. ACCA, regardless of the conduct giving rise to those convictions, because the residual clause is retroactively void, and under the force clause, neither offense has as an element an intentional use of violent force against another. G. L. c. 269, § 10G imposes mandatory minimum
sentence enhancements upon those who have been
“previously convicted” of one, two, or three violent
crimes. G. L. c. 269, § 10G. “Violent crime” is defined,
in relevant part, as:
“any crime...that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another; ...or (iv) otherwise involves conduct that presents a serious risk of physical injury to another.”
G. L. c. 140, § 121.
A. Due process demands that this Court’s decision in Beal, invalidating the residual clause of the Mass. ACCA, be given retroactive affect.
In Beal, this Court held that the residual clause,
subsection (iv), supra, is unconstitutionally vague. Beal,
474 Mass. at 351. That holding applies retroactively to
the defendant. The Beal court relied on the Supreme
Court’s decision in Johnson, which held that the nearly
identical provision of the F.ACCA was unconstitutionally
vague. Id. at 351, citing Johnson v. United States, 135
S.Ct. 2551, 2557 (2015). After Johnson and Beal were
decided, the Supreme Court determined in Welch that its
16
holding in Johnson, supra, created a new substantive rule
of constitutional law which applied retroactively to
defendants on collateral review. Welch v. United States,
136 S.Ct. 1257, 1265 (2016); see Teague v. Lane, 489 U.S.
288, 307, 311 (1989). Retroactive application was called
for because the rule announced in Johnson “alter[ed] the
range of conduct” punished under the law. Welch, 136 S.Ct.
at 1265-1266. The new rule significantly narrowed the
range of conduct criminalized by the statute. Id. Where a
conviction qualified as a predicate only under the
residual clause, “even the use of impeccable factfinding
procedures could not legitimate a sentence based on that
clause.” Id. at 1265 (citations omitted).
The same retroactivity analysis applies here. See
Commonwealth v. Bray, 407 Mass. 296, 303 (1990)
(analyzing retroactivity under the federal framework set
forth in Teague, supra). Moreover, as a matter of due
process, “courts must give retroactive effect to new
substantive rules of constitutional law.” Montgomery v.
Louisiana, 136 S.Ct. 718, 728 (2016). Substantive rules
include “’rules forbidding criminal punishment of
certain primary conduct’ as well as rules ‘prohibiting a
certain category of punishment for a class of defendants
because of their status or offense.’” Id., citing Penry
17
v. Lynaugh, 492 U.S. 302, 330 (1989). Like the identical
rule announced in Johnson, the Beal rule is substantive.
It prohibits enhanced punishment for certain types of
conduct previously deemed punishable: “conduct that
presents a serious risk of physical injury to another.”
G. L. c. 140, § 121. And, it prohibits mandatory
sentence enhancements from being imposed on a class of
defendants because of their status: having a prior
conviction of an offense that qualified as a crime of
violence only under the residual clause. Beal, 474 Mass.
at 341. As in Johnson, the rule announced in Beal was
constitutionally required. Id. “[W]hen a new substantive
rule of constitutional law controls the outcome of a
case, the [federal] Constitution requires state
collateral review courts to give retroactive effect to
that rule.” Montgomery, 136 S.Ct. at 729. Therefore,
retroactive application of Beal is constitutionally
required. Id. Accordingly, none of the defendant’s
previous convictions can qualify as violent crimes under
the void residual clause.
B. Under the force clause, the use of physical force against the person of another requires proof of an intentional, not merely reckless, mens rea. “A statute must be interpreted according to the
intent of the Legislature ascertained from all its words
18
construed by the ordinary and approved usage of the
language.” Commonwealth v. Coggeshall, 473 Mass. 665,
668 (2016). Use is an “elastic” word that should be
construed “in its context and in light of the terms
surrounding it.” Leocal, 543 U.S. at 9. In the context
of the force clause, “use” connotes an active,
intentional employment of force. See id.; Bailey v.
United States, 516 U.S. 137, 145 (1995)(dictionaries
define “use” as “to convert to one’s service,” “to
employ,” and “to carry out a purpose by means of.”) The
“use” of force “means more than the mere occurrence of
force.” Fernandez-Ruiz v. Gonzalez, 466 F.3d 1121, 1128
(9th Cir. 2006). When paired with “against the person of
another,” the phrase most naturally conveys that the
force must be intentionally employed and directed at an
individual, not a force set in motion unintentionally.
See Leocal, 543 U. S. at 9; Bennett v. United States,
868 F.3d 1, 18 (1st Cir. 2017)(“the word ‘against’...
convey[s] the need for the perpetrator to be knowingly
or purposefully (and not merely recklessly) causing the
victim's bodily injury”); United States v. Chapa-Garza,
243 F.3d 921, 926 (5th Cir. 2001)(Use of force against
another “is most reasonably read to refer to intentional
conduct, not an accidental, unintended event.”); United
19
v. Garcia-Lopez, 2018 U.S. App. Lexis 25425 (9th
Cir. Sept. 7, 2018).
Reckless conduct is defined as the commission of an
act, or an “omission where there is a duty to act, which
conduct involves a high degree of likelihood that
substantial harm will result to another.” Commonwealth
v. Godin, 374 Mass. 120, 128 (1977). The defendant need
not intend the harm caused by her act or omission, nor
even subjectively foresee it. See Criminal Model Jury
Instructions, 6.140 (A&B) at 4-5. Hence, a reckless mens
rea includes a defendant “so stupid or so
heedless...that in fact he did not realize the grave
danger” of his conduct. Coggeshall, 473 Mass. at 669-670
(emphasis removed)(internal citations omitted).
The force clause cannot reasonably be read to cover
“reckless conduct wherein force is brought to bear
accidentally, rather than being actively employed."
United States v. Rose, 896 F.3d 104, 109 (1st Cir. 2018)
citing Fish, 758 F.3d at 9. Nor does the language
accommodate treating a failure to act as a use of
physical force against someone. See Watson v. United
States, 552 U.S. 74, 79 (2007) (bartering drugs for a
gun does not constitute “use” of a firearm under
“language as we normally speak it.”)
20
This reading is supported by legislative intent.
“In enacting G. L. c. 269, § 10G, the Legislature
intended to increase penalties for individuals convicted
of serious crimes who subsequently violated firearms
laws.” Rezendes, 88 Mass. App. Ct. at 376 (emphasis
added). It is referred to as the “Armed Career Criminal
Act.” Id. at 370. The purpose of the force clause, in
particular, is to define the statutory term, “violent
crime.” G. L. c. 269, § 10G (emphasis added). Compare
Commonwealth v. Resende, 474 Mass. 455, 465 n.17
(2016)(the Legislature “had the Federal ACCA in mind
when enacting the Massachusetts ACCA”) with Begay v.
U.S., 553 U.S. 137, 146 (2008)(the F.ACCA focuses upon
armed violent criminals and armed drug traffickers.)
If the force clause were not limited to crimes that
have as an element an intentional use of physical force
against another, it would cover crimes that are neither
serious nor violent. See e.g., Commonwealth v.
Grandison, 433 Mass. 135, 144-145 (2001)(not bending
arms during officer’s attempt to arrest); Commonwealth
v. Hall, 85 Mass. App. Ct. 1109 (2014)(backing into tow
truck operator, striking him with open car door);
Commonwealth v. Tracia, 76 Mass. App. Ct. 1112 (2010)
(teacher grabbing running child by shirt, shirt causing
21
superficial abrasions). The breadth of conduct covered
by such a reading suggests the Legislature intended the
use of physical force against another to mean exactly
what ordinary usage suggests – harm inflicted by those
who intend to inflict “violent or substantial force
capable of causing pain or injury” against another, not
harm caused by stupidity, intoxication, a failure to
act, or heedless accident. Eberhart, 461 Mass. at 818.
Cf., Johnson v. United States, 559 U.S. 133, 139
(2010)(to define “physical force” under F.ACCA by its
common law, non-violent definition would “not fit” the
F.ACCA’s purpose: to penalize violent felons).
C. The force clause requires a strictly categorical, elements-based analysis of prior convictions. The question under the force clause is whether a
defendant was “previously convicted” of a crime that
“has as an element” the use of physical force against
another. G. L. c. 269, § 10G; G. L. c. 140, § 121
(emphasis added). By its plain text, the force clause
confines the necessary inquiry to the elements of the
previous offense. Id. Unlike the residual clause, it
“refers to predicate offenses not in terms of prior
conduct but of prior ‘convictions’ and ‘the elements’ of
crimes.” Shepard v. United States, 544 U.S. 13, 19
22
(2005)(citations omitted).
As the Supreme Court has repeatedly explained in
this context, elements have a precise, constitutionally
immutable definition. At trial, elements are those facts
the jury must find beyond a reasonable doubt, and about
which they must unanimously agree; and at a plea, they
are what the defendant “necessarily admits when he [or
she] pleads guilty.” Mathis, 136 S.Ct. at 2248;
Descamps, 570 U.S. at 270; Richardson v. United States,
526 U.S. 813, 817 (1999). Whatever a prosecutor or
defendant may say at a plea about the conduct underlying
the crime, a defendant necessarily admits no more than
the crime’s elements. Descamps, 570 U.S. at 269-270; see
Commonwealth v. Jenner, 24 Mass. App. Ct. 763, 773-775
(1987)(plea judge need not choose which of multiple
theories of liability supported conviction); Metro Prop.
& Cas. Ins. Co. v. Morrison, 460 Mass. 352, 364
(2011)(“a plea ‘is not necessarily conclusive as to the
facts admitted.’”) (emphasis added)(internal citations
omitted).
“When a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense’s elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment.”
Descamps, 570 U.S. at 270 (emphasis added). Therefore,
23
“consistent with the Sixth Amendment,” and due process,
factual inquiry into “what the defendant and state judge
must have understood as the factual basis of the prior
plea” is prohibited when considering whether a prior
offense qualifies as a predicate under the force clause.
See Mathis, 136 S.Ct. at 2252; Shepard, 544 U.S. at 25;
accord Rezendes, 88 Mass. App. Ct. at 378-379.
D. A&B and R.A. are not Mass. ACCA predicates because neither has as an element the intentional use of physical force against another. A&B. Under a proper application of the categorical
approach, A&B never qualifies as a predicate. “[U]nder
the common law, there are two theories of assault and
battery: intentional battery and reckless battery.”
Eberhart, 461 Mass. at 818 n.13, citing Commonwealth v.
Porro, 458 Mass. 526, 529 (2010). In Mistretta, the
Appeals Court held that, with respect to battery
offenses, an intentional and reckless mens rea are but
two means of satisfying a single mens rea element. 84
Mass. App. Ct. at 907-908; see also Commonwealth v.
Tavares, 61 Mass. App. Ct. 385, 393 (2004). The jury
finds only, and the defendant necessarily admits only,
that the conduct was ‘reckless or intentional.’ Thus,
the mens rea element of A&B is, indivisibly, “reckless
or intentional,” and post-conviction factual finding
24
about whether the defendant’s conduct was one versus the
other is prohibited.5 See § IV.C, supra. Because a
“reckless or intentional” use of force does not require
proof of an intentional use of force, see § IV.B, supra,
then not “all crimes encompassed” by the elements of A&B
satisfy the elements of the force clause, and A&B is not
a violent crime, per se. Eberhart, 461 Mass. at 817.
Resisting Arrest. Like A&B, R.A. can be proven with
an intentional use of physical force or “using any other
means which creates a substantial risk of causing bodily
injury.” G. L. c. 268, § 32B(a). The latter theory does
not require proof that physical force was intentionally
used against another. See Grandsion, 433 Mass. at 145.
And, the “model jury instructions...list both [theories]
as alternatives under a single element of resistance.”
Faust, 853 F.3d at 54. Thus, not “all crimes
encompassed” by the elements of R.A. require proof of an
intentional use of force against another, and it is not
a violent crime, per se. Eberhart, 461 Mass. at 817.
5 Cf. Mathis, 136 S.Ct. at 2253 n.3 (statements of ‘non-elemental fact’ at plea should not haunt a defendant in an ACCA proceeding years later; “[a] defendant charged under a statute that criminalizes ‘intentionally, knowingly, or recklessly’ assaulting another...has no apparent reason to dispute a prosecutor’s statement that he committed the crime intentionally (as opposed to recklessly) if those mental states are interchangeable means of satisfying a single mens rea element.”)
25
V. REASONS WHY DIRECT APPELLATE REVIEW IS APPROPRIATE
First, countless inmates are serving lengthy,
mandatory sentences under the void residual clause, a
provision so broad and vague that the Commonwealth could,
prior to Beal, indict and extract a plea on the basis of
virtually any prior conviction. Every sentence imposed
under the residual clause is unlawful, undeserved, and
leads to a lifetime of collateral consequences.
Second, with no catchall residual clause, the
Commonwealth has sought to expand the reach of the force
clause beyond what due process and the statutory text
allow.6 The Mass. ACCA has been and continues to be
interpreted as if the relevant question is whether the
defendant’s conduct, during commission of the prior crime,
was “violent.”7 This interpretation ignores the statutory
text defining “violent crime,” G. L. c. 140, § 121;
perpetuates the unconstitutionally vague interpretation
rejected in Beal; and worse, violates principles of due
process, as the Supreme Court has repeatedly explained
when deciding questions under the Mass. ACCA’s federal
6See e.g, Rivera, supra at note 2 (defendant’s motion to dismiss on grounds he was indicted under void residual clause denied where grand jury heard evidence defendant’s conduct actually involved force) 7That was the Commonwealth’s and the plea judge’s understanding in this case. Opp./9-10; Att. B.
26
counterpart and progenitor, the F.ACCA. See Taylor v.
United States, 495 U.S. 575, 601-602 (1990); Shepard, 544
U.S. at 24-26;, Descamps, 570 U.S. at 260-265; Mathis, 136
S.Ct. at 2250-2254. Moreover, post-jeopardy factual-
finding about conduct for which the defendant has already
been convicted and punished, in order to prove the
defendant committed a narrower version of the same
offense, treads on double jeopardy protections.8
The correct question under the force clause is not
whether the prior offense actually involved violence or
even whether, during commission of the prior offense, the
defendant actually used physical force or a deadly weapon
against another. The correct question is whether the prior
conviction had as an element the use of physical force or
a deadly weapon against another.
While the phrase “physical force” has been defined,
an interpretation of the remaining text of the force
clause is urgently needed. The number of inmates serving
unlawful sentences under the Mass. ACCA is likely
8See Bullington v. Missouri, 451 U.S. 430, 445-447 (1981)(double jeopardy protections extend to post-conviction sentencing proceedings that function like criminal trials); Brown v. Ohio, 432 U.S. 161, 165 (1977)(prohibiting convictions for a greater and lesser offense); Commonwealth v. Harrington, 130 Mass. 35, 36 (1880)(prior convictions that increase penalty are “essential features” of the substantive offense entitled to jury-trial protections).
27
staggering, and there is no end in sight. An authoritative
interpretation of the force clause that complies with due
process, accounts for legislative intent, and can be
applied uniformly and consistently throughout the
Commonwealth is necessary to dispel the dark cloud of
confusion that reigns over ACCA prosecutions.
Respectfully Submitted, Ezara Wentworth, By his attorney, /s/ Jessica LaClair
___________________ Jessica LaClair BBO# 675350 P.O. Box 1215 Northampton, MA 01060 (413) 727-8855 [email protected] Dated: September 26, 2018
CERTIFICATE OF SERVICE I, Jessica LaClair, counsel for the defendant, hereby certify that on September 26, 2018, I caused the defendant’s application for direct appellate review to be served by U.S. mail upon: /s/ Jessica LaClair _______________________
Jessica LaClair
28
29
Mass. R. App. P. 16(k) Certificate Of Compliance With The Rules Pertaining To The Filing Of Briefs
I, Jessica L. LaClair, hereby certify that this application complies with the rules of court that pertain to the filing of briefs, including but not limited to: Mass. R. App. P. 16(a), (e), (f), (h); Mass. R. App. P. 18; and Mass. R. App. P. 20. /s/ Jessica LaClair __________________ Jessica L. LaClair BBO# 675350 P.O. Box 1215
Northampton, MA 01060 (413)727-8855
possession of Ammunition without FID card
g1-sBsLt *T(As Career Criminal)C.269, $10G(c)
worcester' To wit At the srIpERroR corIRT, beg,n and holden at the crrY oF
WoRCESTE& within and for the County of Worcester, on the First Monday of April in the year of our Lord
two thousand and eleven'
THEJI]RoRSfortheCoMMoNwEALTgoFMASSACEUSETTSontheaoathpresent,
That EztttWentworth
on the 13th day of February in the year of our Lord two thousand and ereven at worcester, in the counfy of worcester
aforesaid, did knowingly and unrawfuny possess ammunition, without comptying with the provisions of the General
Laws, chapter 140, section lzgcrrn viotauon of M.G.L. c.269,$10(h), and at such time the said Ezari wentworth
had previously been convicte. of three vioreirt crimes or three serious drug offenses, is defined in M'G'L ' c'269'
$10G(e),oranycombinationthereoftotatingone,inakingthesaidWxzWeutworthsubjecttothepenaltyprovisions of M'G'L' c'269'$10G'
Against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided'
A h-ue bi1l.
e1r7r-r*r* Wr',^laTrtr"rf,W'
d^,,r;t"rrt V/*t
ATTACHMENT A
Possession of Firearrr, Not Ilame or Work
t:ffi:-?;1fifi?"0g,oG(c) i.t-oBBfi -l c
of,r4*."* Wrrrr,t
Worcester, To Wit:
AttheSUPERIORCouRT,begunandholdenattheCITYotr'
WORCESTE& within and for the County of Worcester, on the First Monday of April in the year of our Lord two
thousand and eleven.
TEE JT]RORS fOr thc COMMONWEALTE OF IVIASSACHUSETTS ON thciT OAth PTCSCN!
That Ezara Wentworth
on the 13* day of x.ebruary in the year of our Lord two thousand and eleven at Worcester, in the County of Worcester
aforesaid, not being present in or on his residence or place of business, and not having complied with the provisions
mandated by M.G.L. c.26g $10(a), did Iinowingly have in his possession or under his'control in a motor vehicle, a
firearm, as defined in M.G.L. c.140 $121, without autnority to do so and at such time the Said Ezzrzwentworth
had previously bebn convicted of three violent criines or three serious drug offenses, or any combination totalirtg
three or morq paking the said EzzrzlVentworth subject to the penalty provisions of M.G-L- c-269, $10G(c).
Against the peace of said Commonweaitlr, and contnrry to the form of the statute in such case made and provided-
The above-named defendanl having previously convicted of of violating M.G-. c.269, $10(b), the curre'lrt offense is
therefore aileged as a Second or Subsequent Offense'
A hue bi1l.
= M - %"r,rr,*.*/ r,y d* &*d Jr*/ *rJrt/"/,* wr*-t-
ATTACHMENT A
CLERK'S NOTICEDOCKET NUMBER
1 185CR00336
Trial Court of Massachusetts *TThe Superior Court \W
CASE NAME:
Commonwealth vs. Ezara L WentworthDennis P. McManus. Clerk of Courts
Ezara L Wentworth
sBCC W102609
PO Box 8000
Shirley, MA 01464
COURT NAME & ADDRESS
Worcester County Superior Court
225 Main Street
Worcester, MA 01608
You are hereby notified that on 0411812018 the following entry was made on theabove referenced docket:
Endorsement on Motion to Vacate Armed Career Criminal Conviction and Sentence and Motion for aNew trial, (#18.0): DENIED*without a hearing: Nothing in the record of this case, including the defendant's recent submissions,undermines my conclusion of alomost five years ago that Ezara Wentworth pled guilty to theindictments voluntarily, intelligently and knowingly. Additionally, the predicate conviction wasunquestionably "violent"., so the argument as to ineffective assistance fails. Finally, there was asexpress waiver of any challenge to the Grand Jury presentation here (not to imply merit to any suchmotion). No substantial issue has been raised by the defendant's motion or affidavit to suggest thatjustice was not done in my acceptance of this agreed upon plea. MRCP 30(b), 30(c)(3)(SO ORDERED: DR RICCIARDONE, SCJ)*copies mailed 0412312018
Judge: Ricciardone, Hon. David
DATE ISSUED
o412312018
ASSOCIATE JUSTICE/ ASSISTANT CLERK
Hon. David Ricciardone
SESSION PHONE#
DatdTimo Priild: &232018 1 1 l9:07
ATTACHMENT B
.i:,:Volume: I of f
Exhibits: None
OF
Worcest eT r MassachusettsRoorn 10
$ay L3, ZAfi
;
WORCESTER,
.;t
****** *
MASSACHUSETTS
For the. Comrnonwealth:Worcester County District Attorney,s Office225 Main Street
By: 'Joseph A. euinlan, Assistant District Attorney,.
Eor the Defendant:
370 Main Street: :
worcester, Massqchusetts oL60g
,JANE ELTZABETH ESPOSTTOOFFICTAL COURT REPORTER
G rvn,errhjhlolf
'. ::
: l' ,,iversus Ezara Wentw-orth, Number 11-0336.ersus Ezara hlentqorthi Number 11:0336. I I." r: ' ' :, ' .:., ,. .'i,..,. i ... i, .
': ..' I
Will,the parties pleagq introduce yourqelves
MR. ETTENBERG: Good niorninnt-f,T, your Hono r . Peter.,I
Ettenberg, for Ezara wentworth -
gentlemen.
And good rnorni*g, Mr.' wentworth.
recommendation for any reason, r will Iet you withdraw
:i
agreement here.
so there is an agreed-upon sentencing recommendation i-n
your case, Mr. wentworth, as r am sure you are aware. The
way r would take that. is if r decide to exceed Lhat
your
I
L1
1,2
13
L4
15
15
L7
18
79
20.
2L
22
23
24
2s
'
two-and-a-half -year misdemeanor ...'....,,.,..
I
MR. QUINLAITI: Only on count4
:t'
Il-ncarceration case. rtrs a minimurn
the
three
.:with
years
that.
DTRECT EXAIgTNATTON
o sg, Mr, werttworth, then r qm ready to ask, yo.u a series
of questions, and these qr-restions are designed to ret me
determine whether you are entering this plea voLuntariJ-y and:
with a furr understanding of its consequences. so if at any
time you do not understand any'question that r ask you, or
if you wish to speak privately with your lawyer, you have to
o How about actual schooling? Did you attend any high
school, for example?
A I attended college last yea.r.
Oh, you did?0
'q
:.,
A I don t E think so'; " No 7 '' rtoE
Q- , Well, are You :aware of any:.
that : I
mental
reoalI ..,
illness or
A No, I have not.i
o Do you undergtand the charges that you.are facing?. :'
,A Somewhat, yeah ,, .' I , l
' I\q, ETTENBERG: His response, ,Judge, is,that __ 1 think:,the court heard it, but r think he understands the nature.ofthe chapges. I can teII the Court that f
'have 'spent ii*"' .. ,', ', .1 ' , : ., . ..
with [4r. Wentworth individually. and wj.th niembers eg his.:family going Lhrough the charg.* to whlch'he would be
pleading guilty and the'charges that are being diqmissed.
THE COURT: Okay. So can I .take it that you have
explSined the charges, and, arllof the erements that have tobe proven for the. individuar charges, and any defenses he
I
o
0
Mr.
But going back to 2A04 i you. . . '
, '}
ai.n court pretty regularly
correct ? You have beeJt in
.:A ,Yes, your Honor .
,'0 ,'So you understand that have the firearm
have an.assault and battery on a poliee officerr'carrying a loaded firgarm chargrer 'posses.sion of a
with seriatr numbers def,aced, vand,alism, operating
charga r you
you have
tirearm
recklessly, operating after suspension, resisting arrest.Do you understand all those chaLges?
A Yes, your Honor
MR. ETTENBERG: ,.rudge, wouLd it be beneficial to the
I
. tftE COURT:: Okayi Thanlc you' ' : , ' " '' ' '
l.':
e, . A11, riEhE; Mr. Wentwoiithr basedr on' what the p::osecutortl:
told me for penalty ranges in your case, Mr. Wentworth, do
, ,, I4R. QUINLAN::..
THE COURT:
for. a term to be,:
being the minimum
MR. ETTENBERG:-.
qorrect.
A Y€sr I do, your Honor..l:,
O Okay. All right. T did hear. t,he summary given by.your,'- , . :
attorney. r expect thaL's going to. be basiealry wtrat the.
prosecutor says to me, but r am going to'ask the prosgcutor,
would prove ats of the f act s that, he
trial. r want yotr to lj.sten carefully because when he isdone, I am going to ask you if'those facts are'true, that
you are, in fact, admitting to those f,acts
THE COURT: Go ahead, Mr. euinlan
seven, with three years:
: ,- - .. t- '-,..the one prgdicate/
''' '!' i
Wentworth?
::' ..': l'.'l^'.....,..,,..i", :
,''- 1
]'Wor.CesterAcaderny.....':-...,!...,.'.,.....'',':...',....'..,:.,,,:THE'coURT: " Thank Ybu- '' "
i' '' -' 'rHIi'uuu.tl'I : rrrctrr'l\' ]utJr ':
t,.t:
..
:- " .i '' 'MR. eurNtalu:
--'-of'fiCer FSrey approached
-i
f OOt'. ' And., bef Ot: e' "';: jUSt aS 'he WaS abOUt tO
, vehicle, the defend,ant put the car in gearl
f-ckwarrc.s_ down to thre next intersection and
'.;
. r !.
, : . .'.
the Vehicle '-on'
.:reach the
accelerated i
started racing
' ils ',, ', [, ';;;orrai"* "o*."' """ing!'t'ori"a"i'];"gso";i'i '*+rri:*i*o.i,:' -'irre"' 'ecovefed' Somei iasings: thete'r. a.Lgor,n1ne' ma-L'J-Lmet.ar-i':- rn:r'
.:-- ,-l-- -1,-=,,=--, -] - -., , ,,.- ... . ..,., ,.r.ut .i.- _... i-.,,-;_,._.^.__
.
,1 :
,i' , As t,o the predicat.e oflfens.r, Ss..was convicted, in 2005! i.....:
of a domestic assault and battery, Docket Number 05-5250941
tr
Worcester District Court .
A
0
Q t ,so did your :in'fact, 'comriit tfro"" acts, including ,' .,,
,1,possession of the firearm, possession, of the.firearm with, ,. .--,- _-
the predicate gffense, that..being agsaurt and battery that'y;:ou got a conviction on in 2005, assault, and battery on a
tt...'.
police officerr: carrying a loaded firearm, possqssion of a
firearm with t.he. sbrial nurnber def4gs4, ,as well as
vand.alism, operating recklessly after. susp?nsign and ' ,,:
resisting arrestZ oiA you do 411,,Ehoselt.hings? . .
Can I have a moment to ask my lawyef one quick.
guestion?
THE COURT: Yes.
(Counsel and the defendant conferred. )
-13
24
25
i
_--l . : I ..-t i..:-..,....j.,
feUf.LAl$r:.lftr waq+a,-pafke4 V-efricfer--gout=-ttonoi -j
e ,,.'1 oo: you; .'j tl:i, !n:9-o- ,r,ln ..1 nti"o ?1t1.{..: "r, lt, , ,, .
:--..-.,- --- t -:. ..:' - -,. .r- ,:.-,:: :-:
'; '',:
0 Do you und.erstand that .if: .:
.t,
you ehqse
want to make sure., you know what' you .
rl 1:
acting voluntarilf. , so a! any time'-, : "
need, tg speak to your at'torney, you,. .':'
.i
Do you understand weII I T was':
.t,the rights that you are giving up by
f ar, sir, have you und.erstood what I,.A Yes, your Honor. q
'.''0 Or asked you?
A Yes, si-r .
-you
talking
pleading
to you
guilty.
have said to you?
trial,;.vou would have ttre right''to, participate in the . ": , ' . ,,.. r,.,. ... .. : .' . .,t ..'.., :.. . '
seleetion of tr.1vl., juroiis "whb would: decide your guilt or '
-]-..-..-::-.:'.._,,--..',_;_,..,',,._,.,,.,.'_-,1.:_-i---.-.j.,-:.,..-,-i-r+-.j.,-'::.1:+:lr].j .,,;l- -rr--r a r.--:-i--:rr--r--l--rlf:r:Illl r.-i:- I]lT-r--I f .II,' ,-
'.. , "..;.i
', i:,"
l-' '' ' t l'" .
any kin{C of negatiy6',.::,...:'.,.;]-.:,.,-,'',..|'J::
,l.i:..',: t,. . .,,',....:.-., . "j... ..:.. ,.
.;.
':''.:''..:'.',.'....'|,,:'i,::':.::.:.]l.
'i :.:: : I '.. l '. .: - :i.
A,,Yes,your'Hono5':...,.l.,.....j,...,.;...:j
Q....Do1youundersta1dthatifyouchosei,'':. I .
Commonwealth would be reguired tO prove your guilt bellond a
,{l:.. -. t
have
those
you understood
those rights
2L'..,
agive up the
beyond a.i,
:
NBERG: 'Prior:
suppres s, which was d.enied .
THE COURT: Okay.1
0 Did._you understand all:
'.
explained to you?
A'Va4r rdSr'i
0 Do you choose tota
A You mean -;- what?1
,
O Let me ask it again, sir, to make sure,,,
or heard rre r f should say. r
Do you choose to waive or give up all of
that r have just explained to you?
I
your Honor. ,
, a.
war-ve
,C
daidil-.iWl,r16,be lilc61;y;'E6,:aee-epE;, , Biu-El-otheii th-an'that*,; 'r , ' :'
pailicufar,'statemellt of this agre,ed--uponr, recomrnendatiot, has
O--,,':'*t;- thei'e- bdbn anythlng tiiat'I have'baidr iri t,he: Course=.:.,,.'..'.'.':of tiri":hearing that *"a" you feel like you are forced to
,t:l,:plead':guilt,y or intimidated you in any way?'
:
A
o
your lawyer's advice?
A
0
Yes.
Do you underst'and, 'lthat,at you are not r
'l
Do you understand that you are not reguired to take-
your fawyerts ad,vice?
A Yeah; yedh, I do. a
o
A
okay. Do you have any questions of me at this time?
uhm, the rast guestion you said about my lawyer, r kind
.A,Yes7I.:undeirstand'!hat,,1....].:.,;..''::',:,.:.'.'.'l..,..,.''',:-l' -T ' ...:. ' r."' ,-',. .,-
-,.'i;...,,.-,,.,,'.,=.::.::-,r.,.:-.j:.-,,..'f..::-...,-**-.i-"-,.:
e - ,', Otav . you - aferr a' twenEv-s ax-vearro l(, + r ,
r,,,,--,5-----'t.t --,., t.,,
to me; and. yor,h"Ue toldrmer,'lhat you:rye Lhinking c1early.r't,
'th-t 11ou don't know of an11'mental'.1Unesg'llou h"t"l ,that you'
' -.. .. .- . -. --- -- ',- .- '....--.'i-... .... '..-. .-:-:.I-. '.t '-_:
fra..en-;t [.aken .!t drug-S bi]JfCohOf iri'Ltie: ]'aii,t' tWenty-four
hours, that you have some 's5-ghificant'educatiofl'i .that yo,u: . . . ':
I h"r",gOne to, at leastion.-,r..r of,bol1ege1 and"you have had.- .i .:
t, .- ..'': ,. \ _..'.
some work.experience. Basi-ca}1y, so far, you have told me '
a:
:
.
forced you to
voluntary act and deeision: ,or1
rect? :
No, that I s all correct,
,and if y,you are not
have t,he c
A,Ye-g..-:......,,.,,',,.'.,.:'].,l
Q, " unferstanding this, ,do-you s!i11 wish to plead guilty
;i
-:,., THE cOURf: It.may be that it doesn't apply, but have
you at leagt considered these things, Mr. :Ettgnbgrg, and :,.:talked to your client abouL collateral conseqluences, whether
,
it be immigration or other conpeqqences,of a guilty ptea?...,.. i'
,,'.
. MR. ETTENBERG: yes, Judge.. ,fn factl when We.raient: '.through Ehe wai-ver of right.s form, one of . the questions he
:.asked r^ras:'why am r belng tor-d this, about the immigration- J-.-
consequences? ' ,., '
: THE COURT: Okay;
0 ft is a requirement by thei
by a defense lawyer to go over
understand that, Mr. Wentworth?
"Court and alsor
such things with'.t
these days,
you. Do you
could: be suspengion .of ygpr, right to operate a, motor- .
t , ' . . .. ,., , ,.,. . ., -
. . t
lvpfrj-clq,.. Do 11o-u upderstand.that, .too? i: ,
, : ... , .,,, . ' . . ' ,, ' ..
.o'.' Yes. giratrsfiner.yourttorror'. ' ':' ',' ',..,
....'-.,,,.:.,:.:,;.o Do you understand thSt by pleading gurrty to thes" '.' . ,
: :' 't"'
ind.ictmenls. yiu w,r1r be reqqirgd to provide a' DNA:sample for. .+'' , 'i
inclusipn:in,the state,oxa .a"tabaee? ',1 ,,. ,, . .: . ' , t,
,
'1,
o Are you in any way confuqed by.any.of thq questions rhave asked ybu?
!
0 Are there any -- r 'o"n your pard.orl .:
it, from the answers you have giveq iler.
. .:
guilt,y to these :,indictments because you""'''1
,''
no other reason; is that correet?,:
A Yes, :that I s correct. ,
0. Okay.
THE couR?: Mr. Ettenbergr'is th€re any other area ofinguiry that in you view. r should ad,dress or any reason thatyou'are aware of, that r should not accept, the defehdantrs
"'So as I understand
,
you are Pleadingt,
are guitty and f,or.:i.
:. ..' .:. . .. :. : : "...:'..,1
take into account the acceptance of responsibility, his dger
,:,.:
r: : . : i 'l "'.29. ,. , : ' ..
the fact that. nobgdy was hurtr thankfurly, +nd arso the,facL':j
that the prosecutor feels that 'this. is a, fain ="nt"rr.", ", t '
: , : .r --..,-- - :.--:--
|fsthereanythinge1seyouwanttgsay?I I 'i, :
I . : , ., ,..t .,: .,'. ...,. .. . 1- . ,. . .:
I 'MR. QUTNLAN: No, your tionor. .' ',, 1 1 ,..1'
: 'i,. ' .
' for the. record, the owner of t,he motor. vehicler he had. ...: :... ;':,. .,.,,.,:. ... : I :. r. ',.jt : ..'
.,,. ..r'.,
bogrowed i!. he" is deeeased... .Then the owner gf the paitea
. vehicle was here f or trial a week , or',so ago . hsurance ' .
co-vered the .lqspeg, to that moqgr'vehicle. " l, l, , , , . :
. r i. :
:nobody was in !h+t car that, got struck, along with the other.: : .:,i ' 1
t, ,. ..
things you mentioned.r r know there was a report gf srroJs...'..'' ;t. " . , .',. .
being.fired; r know he. is not being. charged, with that.. Buti ', : :' .
you didnlt te1l me anlrthing .e1se abo,ut thatl incld,ent,::l . : .' ,1, '
leadi-ng to -: ' ' ... ,., ., ,.. ,, . i,' .,, ..1
.,
14R.. QUINLAII: Nobody was chprged. ,. . , '
:l
THE COURT j All. right. Okay, ,Baped on. the answers. . , .
that I.4r. Wentworth gave:m€r. Ets weLl as t'he rest of my i
.:observations of his demeapor. and hiq.,guestigns,to mer, r. findthat the defendant is frilly corrrpetent to waiye his rights
.:. 1..i:and to plead guilty: tr f ind ,that there +.s a , suf f icient
factual basis,for the p1ea. r conclude that lhe defend.ant' -
'' , t ' .' t ..
ful1y understands the rights that he is waiving and the
consequences of his guilty plea'and further conclude that he
is waiving his rights and pleading guilty freely,
voluntarily and intelligently
t .'i,:ES,;; ,
.:nrf6Cl6,&\r9\,rI':
tment:"ndic
Vc1
,''';THE CLERK: Indictment 1L-0336-8r which presents'
,9 It:
I I "31t.I
| .resisting arrest. how do yoU plead, guilty or .not guilty?I i ...i. '' .: .'.: .::- '.. . .:'.' :| .
'l . ' : " . .
' .
' ': ,: '
|.,THEDEFENDANTi".eui1ty..',.,,i.
.;.. , .', ' I ' . ...
THE COURT; O!a11. 'So I wi$ accept the agreed.:upon. ' .', : . .: t. .i : " , .'
recommendation with regard to that last count. count ten
will be a sqntence gf nqt less than three, no more than '
',,.,:seven years direct to state prison.', And, if r und.erstand the
'',...,1''''.'.,--iJi,.....i:.. ':'recommendation, it includes five years of probation to begin.:' ' :
upon hi.s .release from that. sentence. ' ,,
.j: '.',, : ,.
,i- : :
[4R;QUINLAN:Yes,yourHonor..:.",',..
THE COURT: Vflith no other d.ireit sentences imposed?
MR, IQUINLAIV: Corre(I. ':
THE COURT: ,Okay.
0 [4r. Wentworth, you will be
three to seven, with three years
are released, within twenty-fouribation department. i
probation j.s that
if you vlorate the terms and cofiditibns of your probation
during those five years that you are on probation, sir, that
you'may be sentenced. to any penalty that the law allowsr up
" ' I,IR; QUINLAN: Nor' youlHonor.,'. think:,Vou::l ' ; : ,. : ' :
criminaL, with'one previous offense;..:th'e C6urt'"orders ttiat. -. ..... .-.-..-.] -. .' -;*---:,:;--',.'.:"':.-:' -'*' you be placed irtlconfinement'at: thd Massachusetts ,, :t: '..r .'.,.: .' ..-..,:. ., '',,...,. , . .:... ..: - ; _l ,,. ,. :. :
Correctional Institution at' Cedar ,JuncLion for, nci,t. less than.: . . .. ' . i
three; 'nd'more than geven yearsl''.,';- ' , , 'r;' ;'.'r :'"'" ::'l' j
' ',' The Couit further orders'you be given cred.it in the'-tii
_ta.
:
,.. ' .- : .' 33. ... - . r: ..
amog.lt of 'eighty-twq. d"y.q and. that you bq assessed a victim.'..,,
i ' :.,,..: ' . ....:,.. :.
witness fee in lhe amount of ni.nety dollars: . .,,. ,
..: . j.. rr ', , : . . i.'.:
. On lndictments 11,;0335.1, assault and battery on a,':' '' : ''
l- ''' "
t' ' '-'"
-''-. .' .,. : :''.. ,.,, .....:.'.'l; l.': ...' .,,
police offrcer, 1.1-9335-2, fossepsr.orj of a Igade.d, fireaim': '.
-'-: .' :' 1.. ',.' l ': '. : '.': .' .r' t tt::.
".,."'; r' ': : 1 : ' " :
not :home or worki 033.6-3, ,.posseqsion of a. firearm wilh the,, . .
'." ..r, .,.,,: ..gerial number defaced, 0336-4r vandalism, 0338-5 operating'
' .' , t :'' : '. ':. ".. .. ''. '.' . -.;,
rgsisti.ng arrest., the Court orders that you be placed on, , ,i,.'
:
.. , . , :. . j . r
probation for f,ive. ygarsr. to take effect ,gn and after the. . . . ... . .., , r ' , ' r. I . .. ;' .., '.: . . .... .... ..1.',.
sentence justimposed '..,..r.:.:..,.,,,,'' ,, j . .' , ,
In addition to the standard conditi.oos of probation,':."-:, i,'the.court orders that you have no possession'of firearms or''-: /. : . :'
any matters under Chapter 26! and its sections.. ' . .
' The Court f,urther orders lzou bg assgssed a probation
supervisionfeeiiitrreamguntofsixty-fivedo11arsper:,
month.
THE CLERK: On Indictments 11-0335-7, failure to stop,
and 335-9, possession of ammuriition without an FID card, as
a eareer crj-minal, the Court orders those indictments
dismissed at the request of the Commonwealth.
A1I: :
Thank:
you. :
.
t.
d ,r
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.j....',,j..j...j....
J.:.,.:',,i:,,,,,.,',..'.,.,,,''....],']l..,,....,,..1.:.,.,,..neitheE am: colinsel for, related to,, nor empLoyed by' any of
Woicester, Massachusetts 0l-608TeI. (508) 831-2304
I
COMMONWEALTH OF
Jil
s$*s$N\NNN(\\
NS
Worcester, ss.
COMMONWEALTH
V.
EZARA WENTWORTH
ARMEDMOTTON
CAREERr.OR A
CRII{INALNEW TRIAL
ill4(,20opies Mailed *. 4u*-,*"
MASSACHUSETTS COPYWorcester Superior Courtrndict. No. 201 1 -033G
vDEFENDANT'S MoTToN To VACATE
CONVICTION AND SENTENCE AND
Defendant, Ezara wentworth, respectfurly moves this hs honorable\Y ,g u=rErt(rclrrLr tzd-Ld' werlLwortn, respecttUJ-l-y morles thiS hOnOfable
\ -3 court, to vacate hj-s armed career criminal conviction and sentencer\ -tN t and, grant him a new trial, pursuant to Mass.R.crim.p. 30(a) and
aNs, , (b), Johnson v. united states, 135 s.ct . 2251 (2015) (Residuar
N X{",.,r=" or the Armed career criminar Act is unconstiturionally
N **Vague), and commonwealth v. Eeat | 474 Mass. 341, 35 1 (zot6)(,,we
R i-Nrt"e with the court's analysis in Johnson, supra, and concl-ud.e
;s, S \irat the residual clause of the Massachusetts ACCA is unconsti-
N S $"""ar]v'-v-asue- " ) -
S S\,i":.":.,"."r""."r""rr:".::.'assisrance or counse,. who
'S S .S provided defendant with incorrect 1egal advice, which led
} S \ to defendanr preadins suilry. see Lafler v. cooper , s66(\ -*,' rT c 1 tr c r lnl 1\ / ^^--Lr L--Lr ^-- 1
N S u.S. 156 (2012)(Constitutional standard for determining
{ * ,. t."ffective assistance of eounsel during guilty plea pro-
S E \ ceedings); and commonwealth v. r4ahar , 442 Mass. 11 (zoo4,)
\ S+ (inef fective assistance of counsel- in the context of guilty
\
\ tr( r?-a, @-t-
2.
GOFYDefendantrs giuirty plea was also predicated on thethreat of a 1 5-year enhanced sentence under the Armed
career crimi-nal statute, G.L.c. z1g, s 10G(c), however,
the recent united States supreme court ruting determiningthat the residual crause of ACCA to-be unconstitutional,conseguently invalidates defendant's ACC indictment andguilty p1ea. See Commonwealth v. Williams, 89 Mass. App.
ct- 383, 389 (2015)("To the extent the defendant,s plearesulEed from a desire to avoid the risk of a twenty-yearprison term, a sentence that would not have been permittedafter the predicate offense was vacated, the defendant'sdecision to plead guirty was not a correctry informed
one- A mistake regrarding the direct conseguence ofpleading guirty, including the maximum possible sentenceof the cri-me charge, undermines the validity of a guirtyplea. " ) .
The commonwearth presented insufficient evidence to thegrand j ury to establish probable cause to obtain ACC
indictments where the commonwearth did not present a
cerLj-fied record (docket entry sheet) of alleged predicatecorivietions, but lnstead presented a series of guestionsto the arresting porice officer about a d.ocument herd by theprosecuting attorney (ADA J.A. euinlan), that appear tobe defendant's "eriminal history, " in which the officeranswered "yes" 1Z times and "Mm_hm,' Lwice, being the
f,u1r extent of the police officer's alreged tesLimony
3.
a
4.
COPYwithout presenting any corroborating evidence beforethe grand jury. See Commonwealth v. Garvey | 477 Mass.
59 (2017 ) ( "As a conseguence, without hearing any evidence
of separate criminal events, the grand jury could notconcrude that there was probable cause to berieve thatan essential element of the habitual offender statuteexisted-'r), compare commonwealth v. Bea1, 474 Mass. 341
(2o16), and commonwearth v. Robinson-stewart, 33 Mass.
391 (2016)(commonwealth did not present certified docketrecord of predicate convictions to the grand jury).
Defendant asserts thatr ?s a matter of law, the ACC
indictment, G.L.c. 269, S 10G, count 10, did not providesufficient i-nformation of the alleged predicate convictions,therefore, the ACC indictment is invalid and, the courtlacked jurisdiction to impose ludgment and sentence
defendant pursuant to G.L.c. 269t S 10c. (G.L.c. Z77l
S 47) . See and accord Commonwealth v. Harringrton, 1 30
Mass. 35 (1880)("It follows that the offence which ispunishable with the higher penalty j-s not fully and
substantiarly described to the defendant, if the complaint
fails to set forth the former convi_ctions whlch are
essential features of it."), and Commonwealth v. pagan,
445 Mass.161| 169 (2005)("when used to enhance a penartyr,
prior convictions must be all'eged in the complaint orindlctment and proved. If a defendant is made susceptible
-3-
to a prescribed statutorilyof a former conviction, the
alleged in the complaint or
5- The commonwearth did not introduce sufficient evidenee
for the grand jury to concrude whether or not defendant's
prior convictions constituted ACCA predicates, e.g. ,,a
polj-ce report, plea colloguy, trial transcript, or
stipulation of facts." Commonwealth v. Mccar , 385
Mass. 150 (19821, guoting commonwealth v. Robinson-stewart
33 Mass. L. Rqp. 391 (2016). Arso, see and compare common-
ry|474Mass.341,352(z016)(,,TheCommonwea1thnow eoncedes that, for the reasons set forth in Eberhart,
this evidence was insufficient to support the defendant'sconviction under the ACCA based on the predicate offense
of assault and battery.").
Moreover, the commonwearth asserted three types of prior
convictions as ;'predicate convictions,, to support the
ACCA indictment, which prior convj-ctions no longer guarify
as ACCA predicates, where the residuar crause of the ACCA
statule has been deemed vague and unconstitutionar. See
and accord binding precedent J-n Johnson v- united states,135 s.c t. 2251 (2015); and commonwealth v. Bear , 4'r4 Mass.
341 (201 6) -
6.
eoF'r'enhanced penalty because
predicate offenses must be
indictment. " ) .
-a-
,.'l_\-,{-*r "1It i!'"J,/| ;.'? \ ./l:r !rt' :li-' u
7. The first set of prior convictions the Commonwealthintroduced to the grand jury as predicates for ACCA
indietments, RESISTING ARREST ("Worc. Dist. ct. 11/21/oBand Leominster Dist. Ct. O5lZ2lOA, d.o not (as misd.emeanors ) 1/
guarify as ACC predicates and, defendant further assertsthat resisting arrest offense is "divj_sibler,, with one
clause consisting of a viol-ent felony and the other notconsidered a viorent felony, therefore, where the commonwearth
faileil to produce additionar evidence to distinguish what
clause the underlying resisting arrest convicti_ons werebased. on, this court is without sufficient informati-onto qualify defendant's prior resisting arrest convictionsas predicates for the ACCA indictments and, must be
di-smissed as predicates. shepard v. united states | 544
u"s- 13 (2005)(Government's use of documenLs for ACCA),
united states v. Faust, 853 E'.3a1. 39, 53 (1st. cir. 2017)( "Resisti-ngi arrest can not categoricalry qualify as a
predicate under ACCA. " ) , and Commonwealttrlr__rEga! , 47 4
Mass. 341 (20161.
8. The Second set of prior convictions the Commonwealth
introduced to the grand jury as predicates for ACCA
indictments, ASSAULT AND BATTERY (,,Worc. Dist. Ct.08/30/A5 and Worc. Dist. Ct. AB/30l05), do not gualifyas ACC predicates, per se. Commonweal_th v. BeaI, 474
Mass ' 341 {2016r I and commqnwearth v. Eberhart | 46i
During sentencing, the Conrnonwealth concededi-s a huo*and-a-ha1f-year rnisdemeaaor.', Sent.
tbat'rresisting arrest,rrpt. Vo1. I, p. 5.
1l
-5-
"/,f ':'
lri:
'\ " *')--J
Mass. 809 | 816 (2A12) (Assaul_t and battery j-s notcategorically a "violent crime.r').
.,"/-\iti : l ii : \.
ir1i
o The Third prfot conviction the commonwearth introducedto the grand jury as a predieate for ACCA indictments,
(Worc. Dist.. Ct . 11 l21 lOB,) ,
does not gualify as a ACC predi-eate, per s€r because theof.feqse o!. c-arrying a dangerous weapon encompasses conductsatisfying one of several definitions, not alr of whichare violent, the commonwearth must provide not onry thece::tifi-ed record of conviction, which the commonwealth
did not.do), but also evidence of the circumstancessurrounding the carrying a dangerous weapon conviction,which it also did not do, therefore, where the defendantwas found to be in possessi-on of a "pocket knifer,, inhis pocket, it was not brandished or used. in a dangerous
way to gualify as a predicate for ACCA indictments and,must be dismissed as a predicate- see commonwearth v.Bois, 470 Mass. 15 , 29 (2016) (A weapon is ,'dangerous
per se" if it is an "instrument designed and constructedto produce death or great bodily harm,, and ,'for thepurpose of bodily assaurt or defense.,, weapons of thistype incrude "firearms, daggers, stilettos and brassknucles but not ttpocket kni-ves , razors, hammers wrenches
and cutting tools.,f) , guoting, ,
380 Mass . zs6, 303 ( I ego ) . ^r-;;;;
accord common-
-6-
i'r\ri{ti\r'\-ry
10
wealth v. Ir4iIIer , 22 Mass. App. Ct. 694, 695 (1986)( "Defendant was improperly convicted of carrying a
dangerous weapon where he was discovered to have aclosed knife in his pocket but it did not have enough
characteristics of a "dirk" knife to comply with theterms as used in the statute.").
where defendantrs guirty prea was based on 1 ) incorrectlegal advice from counsel; 2) ACCA residual clause deemed
to be unconstitutional-; and 3) predicate convictions didnot gualify for ACCA indictments defendant's guirty pleawas not knowingry and voruntariry made and, therefore,defendant should be entitled to a new trialr ds Iaw and
89 Mass.justice so regurj-es. Commonweal_th v" Wi11iams,
App. Ct" 383 (201s).
WHEREFORE, defendant reguests thatgrant him an evidentiary hearing, al_low
ACCA conviction and. sentences, and grant
the foregoing reasons, where it appearshave been served.
this honorable court
his motion to vacate
him a new trial for
that justice may not
m'gfuffiffisEP 1 q z1fi
ArrESr:
{A/ rLlt;cLERK
Respectf ully sub;qitted,
WUqXw*Of-Ezara WentworthPondville Correctional CenterP.O. Eox 146Norf o1.k, MA 0205 6
l lr{n
-7-
,'f'-- li1\ iI j':i#'.,MM,NWEALTH oF MASSACHUSETT' '\* ''"tJ7'Li*
iiWorcester, ss. Worcester Superior Court
Indict. No. 201 1-0336
COMMONWEALTH )
)
v.l)
)EZARA WENTWORTH )
AFFIDAVIT OF EZARA WENTWORTH
Lt Ezara Wentworth, hereby submits this affidavit in supportof the foregoing Motion to vacate Armed career Criminar convictionand Sentence and, Motion for a New Trial-, and I state the following.
1" on February 13, zo11t while in the city of worcester, T
operated a motor vehicle after the suspension of my driverslicense.
2. The weatheiloondiLions was cold and snow:covered,the streets.3- At some point, worcester porice tried to puII me over and.,
a high speed ehase ensued.
4- I lost control of my vehicle and r accidently hit two parkedmotor vehicle.
5. r then careened into a snowbank causing my vehicle to fripover.
6. I managed to get out of the vehicle and I attempted to runaway.
7. I was apprehended by Worcester police and a strugigle ensured.when the police was trying to physically ftip me- onto theground.
B- one of the porice offi-cers hit me in the face with his gunanil'broke my nose.
-t--
12.
9. I was knocked unconscious.10. When I woke upr I was in handcuffs and being
a porice vehicle" then put into an ambul,,,c€rdragged to
11 ' r was taken to uMASS Mediear Hospitar and treated forbruises and a broken nose.
After receiving medicar treatment, r was transported tothe worcester porice station and booked on charges ofassault and battery on a police officer, numerous motorvehicle charges, and unlawful possessi-on of a handgun,which was alleged found in the motor vehicle f was operating.Notwithstanding, r was released, on $40.00 cash bail.April ln, 2011, a worcester county prosecuLor (euinlan)went before a Worcester County Grand Jury to obtaincriminal indictments against me.
Presumabl,y, after obtaining criminal indictments againstme, the prosecutor then proceed.ed to question the arrestingpoliee of ficer about my atleged ,rcriminal hi_story.,r
The prosecutor did not introduce to the grand jury acertified criminal record, trial transcripts, guilty pleatranscri-pts, indictments, compraints or any other documentsas evidence of my prior convictions to estabtish probablecause to support ACCA indictments.rnstead, the prosecutor asked the arresti_ng office (Jesuscandelaria) a series of questions regarding the d.ates,courts, and prior convictions without producing any otherinformation as to my conduct regarding each conviction.The prosecutor's guestions/statements to the arrestingroffice,p was responded to witlr a "yESl, 12 times and ,,Hm_hm,,twice, being the extent of the.arresting officerrs testimonyregarding my prior convi_cti.ons.
13.
14-
15.
16-
17 -
18.
-2-
t:L]
19.
2A.
21 .
22.
)L
25.
rt appears as though the arresting officer's testimonybefore the girand jury was merely perfunctory and previously
cJr'o.reg_raphed by the prosecutor to have the of f icer simplystate "yesr " to each of the guestions/statements presentedby ihe prosecutor.
The prosecutor did not establish a proper foundation toquestlon the arresting officer,s personal knowledge orhearsay reqarding my prior convictions.
The prosecutor orchestrated a farce upon the grand juryand did not provide suffieient evidence to establishprobable cause to support Acc indictments. see portionof grand jury transcrj.pt attached hereto.
23
My attorBgyreguesting 1
leve1 3 | ifcharge.
My attorneyme and thatme and, thatsentence.
informed me that the Commonweal_th would be5 years mand.atory on the ACCA indi.ctment,f go to trial and I am convlcted on the gun
then proceeded to exprain the indictments tothe Commonwealth had a strongr case againstf should consider pleading out for a lesser
r told me attorney. that this was my first gun case and,that r should not be charged with AccA level- 3 becausemy prior convictions were misdemeanor convictions.
My attorney told me that resisting arrest, assault andbattery, and carrying a dangerous weapon were arr priorconvictions' whcih the commonwealth could use againstme in the ACCA indictment-
I had no way of knowing whether or not my attorney,slegal advice was correct25
-3-
I "' :'.' ';: jr"...*"," ...-
-- .. . ,
Eor the next severar monthsr my attorney kept terlingrne that I had ',better make up my mind,, because I wasfacing 1 S-year mandatory sentence under ACC and, thatI had no defense.
i
27.
28-
30.
31.
32-
22
34.
I was vexed,not workj-ngto hurry my
When I appeared in court on May 13, ZO1
told me that ,'he" made a deal with thethat I would get S_7 years and 5 yearsmy guilty pIea.
confused, and felt that my attorney wasin my best i-nterest and that he only wantedcase along.
'r a1-so bel-ieved that- my attorney-was not- trying- to preparea defense for me, but, instead, he was only interestedin gettingi me to ,'cop_out.',
3, my attorneyprosecutor andprobation for
f told my
for a 5-7firsL gun
attorney no, I didyear sentence and 5
offense.
not want to plead guiltyyears probation for my
My attorney told me that.if. Irepresent me .at__ tri-a} _,because
went,Lto,tr:iall he would notf had no defense.
Again, r was confused and now angry by the fact that myattorney was forcing.me to plead guirty because he wasn,tgoing to defend me at trial.
When my attorneywas w111 to dropwith 5 years from
cam back, he tolil me
the bottom number forand after probatlon.
that the prosecutora 3-7 year sentence
I felt trapped and confused-35.
-4-
36.
37.
f did what my attorney told me
to all of the charges.
to do and, f plead gu11ty
After a brief discussionrecommended 3=7. years atprobation from and after,
with the judge, the prosecutor
MCI Cedar Junction wilh 5 yearswhich the court imposed.
38. About two years l_ater, the United State Supremeissued a
22s1 (20ruling in Johnson v. United States, 135
1 5) , deeming the residual clause of the
Court
D. LL.
ACCAstatute unconstltutional
39' A year l-ater, Massachusetts supreme Judicial court lssueda ruling in , 474 Mass. 341 (2016)confirming the supreme court decision in Johnson, and,ruJ-ing that assault and batteryr -iper se, did not qualifyas an ACCA predicate, citing commolLwealth v. Eberhart,461 Mass. 809, 816 (2012)-
At that poi-nt, r realized that my attorney provided mewith incorrect 1ega1 advi-ce and that my ACCA indictmentswere not var-id and that neither was my guilty plea becauseit was based on i-ncorrect information.
Sworn under the pains and penalties of perjury.
40
9,"'',r H'gfuffiffisEP I 4 2frX7
ArrESr:
0"/ flori,'f, ,,.r0,*
fu' q,"r {Ezara WentworthPondville Correctional Ctr.P.O. Box 14GNorfolk, MA O2O5G
-5-
trXFIIBITS
FEH-HMsEP t + Znfi
ArrEsr:
d/ rilr"cLEBK
,. :j1 .':.. ,"- :-". ":'.: .: n,-: ,r -! ._ :-=--: . /' l
l'':":,.;- '.' ".' ' : irPossession of Fiiearm, Not Ilor.p or'Work(Career Criminal) t-/1.
c.z6s,g10(a)(d)andg10G(c) j.1- 0 3 36 -/?
'Worcester, To'Wit:
At the SITTERIOR COURT, begun and holden at the CffY Otr'
WORCESTE& sdthin ard for the Cor:nty of Worcester, on the First Monday of April in the year of our Lord two
ifisusard and eleven-
TITF', JIIRORS forthe COMMONWEAITE OF MASSACHUSETIS ontheir oathpresenl
That Ezara Wentworthon the 1Sft day of February in the year of our Lord two thousand and. eleven at Worcester, in the Corinfy of Worcester
aforesaid not being.presentin or on hil residence or place of business, ald not having compliedwith the provisions
mandated by M.G.L. e-269 $10(a), did lo.oftngly have in his possession or under his'confuol in a motor vehicle, a
filearm, as defiaed in M.G.L. e.140 $121, without authorify to do so and at such time the Said Ezara'Weutworth
had previously bebn convictecl of three violent criines'or thrrje serious drug offenseS, or ary combination toteling
thrce or moiq making the said EzzraWenfworth subject to the penalty provisions of M.G-L. c.269, g10c(c).
Against the peace of said Commonwealth, a:rd confuiry to the form of the statute in such case made and provided-
The above-aamed defendanl having previously convicted of of violating M.G.. c.269, $i0G), the current offense is
thsrefore aileged as a Second or Sobsequent Offense.
A fu.ue bi1I.
-p, @eJ c{r.e,xo4, t€a,{rott,
J1*46 - %."2,-,,,1l.r d* S^,,,t ;fl* ,,Jfr/"/,*'V,"-,r
il-* tbWL-"
-,f\ t- e
{{+ {,r\t' in:\.f'uVlLt" iJ
COMMONWEAT,TH OI' MASSACHUSETTS
WORCESTER, SS. SUPERIOR COURT
rN THE MATTER OF:
EZARA WENTWORTE
GRAND JURY MTNUTES
14 APRrL 20L1.
FOR THE COMMONWEAITH: JOSEPH A. QUINLAN,
ASSTSTANT D]STRTCT ATTORNEY
MADAL]NE R. ARNI
VERBATIM COURT. REPORTER FOR THE GRAND JURY
,COFY
EXAMINATTON
INDEX
BY JOSEPH A. QUINLAN
WTTNESS:
Earl E. Dyer
Jesus Candelaria
Jesus Candelaria
PAGE:
3
L2
l_5
NUMBER:
1
E X E T B I.T
Photograph.PAGE:
5
I .'+-, "1 r. ,/,/It ]r \\r,.I t--' ! \' ,/iPd :lt r !i! t tiI I tt
il
I
2
3
4
5
5
7
B
9
10
11
1_2
13
L4
15
15
l7
1B
L9
20
21
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23
24
25
WHEREUPON, THE WITNESS, JESUS CANDELARIA,
HAVING BEEN PREVIOUSLY DULY SWORN, RESUMED TIIE
STAND AND TESTIFTED AS FOLLOWS:
EXAMTNATTON BY JOSEPH A. QUINLAN
A. ff again for the record you could identifyyourself?
A. Jesus Candelaria.
O. And for the record you remain under oath from
a few moments ago.
A. Mm-hm
O. Now, addressing Mr. Wentworth who you
encountered February L3, 20LL, oD a firearm and
A. Yes.
O. I want to direct your attent j_on to a
document I have before me. Would that appear
,j:.- . to be his criminal history?A. YeS.
0. Date of birth of December 20, ,86?
A. Yes.
O. And, actua11y, 4is history shows the case you
arrested him on, the pending case here
A. Yes.
-15-
ir i:ii\.:, /
1
2
3
+
5
5
7
I
9
10
11
72
13
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79
20
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O. is that correct?A" Yes.
O. Caf-{.y*a_!g a firearm, et cetera?A. Mm-hm.
0. And back on November Zl, ,0g, does it show a
findins of suilty q_L?jlsj.l_g-.3g_esr? __. .
A. Yes.f.,..,...''-'..
- J, -,-.
o- And on that same date does it show a firidingo f sui 1g on c ar*i"n^.:.,-..931g_u":g-gs--,deapon ?
A ' Yes-'
0- And both of those would have been in worcesterDistrict Court?
A. Yes.
0. And then in Leominster District Court on or.about May 22, ,08, does it show a guilty forresisting arrest?
A. YeS.
0. And then in worcester District court does itshow a guilty for an .as.saurt and battery on orabout August 30" ,05?
A. Yes.
0. And again August 30, ,05, a separate complaintfor assault and ,battery?
A. Yes "
, O. Also in the Worcester District Court?
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A. Mm-hm.
A. So at the time of his being charged with.carrylng a firearm on February 13, 2OLL. he hadat least three prior crimes of a violentnature ?
A. Yes.
0' plus a prior conviction of a dangerous weaponcharge under Chapter 90 strike thatChapter 269 | Section l0?
A" Yes.
MR. OUfNLAN: (To jurors) Are there anyguestions for this wit.ness?
(Jurors respond negatively. )
MR. QUfNLAN: Seeing no questions, may hebe excused?
(Jurors respond affirmatively. )
( \/l_Eness l_s excused. )
MR. QUTNLAN: With the officer,stestimony, that would be the evj_dence as
,to predicate of fenses, Are the jurorsready for deliberations?
FOREPERSON:, A1I those in favor ofallowing the Assistant District Attorneyto remain in the room, so indicate.
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(Vote is taken. )
FOREPERSON: That is unanimous.
(Positive unanimous vote is recorded. )
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CERTTFICATE
TI MADALINE R. ARN, DO EEREBY CERTTFY THAT THE
PRECEDING PAGES 3 THROUGH 18 ARE A TRUE AND ACCURATE
TRANSCRTPTION OF MY DTCTATED TAPES RELATTVE TO TEE
MATTER OF: COMMONWEALTH VS EZARA WENTWORTE,
PRESENTED BEFORE THE GRAND JURY ON 74 APRIL }OLL.
MADALINE R. ARN
-19-
CERTIFICATE OF SERVICE
I have served the,Worcester County DArs
of the foreqoing motion by first class maiI,
rt Ezara'wentworth, hereby certify that on thi-s A$ dayof September ZO1'1 ,
Office with a copy
postage prepaid.
Wentworth
COMMONWEALTH OF MAS SACHUSETTS
WORCESTER, ss WORCESTER SUPERIOR COURTDOCKET NO. 1185CR00336
COMMONW-EALTH OF MASSACHUSETTS
v.
EZARA WENTWORTH
COMMONWEALTH'S OPPOSTION TO DEFENDANT'S MOTION TOVACATE ARMED CAREER CRIMINAL CONVICTION AND FOR A NEW TRIAL
Now comes the Commonwealth and hereby opposes the defendant's motion to vacate his
March 13,20L3, guilty plea to unlawfuily carrying a loaded firearm, as a career criminal, for
which he received the deposition he requested. The Commonwealth requests this Honorable
Court summarily deny the defendant's motion where the defendant's swom statements at the
colloquy establish the intelligence and voluntariness of the defendant's plea.
Prior Proceedingsl
On May 6,2011, a Worcester County Grand Jury returned an indictment charging the
defendant with assault and battery on a police officer, G.L. c. 265, $ 13D; unlawfully carrying a
loaded firearm, G.L. c. 269, $ 10(n), as a career criminal, G.L. c. 269, fi 10G; possessing a
firearm with defaced serial numbers, G.L. c. 269,5 1lC, as a career criminal, G.L. c. 269, $ 10G;
vandalizing property, G.L. c. 266, g 126A; negligent operation of a motor vehicle, G.L. c. 90, $
zaQ)@); operating a motor vehicle with a suspended license, G.L. c. 90, $23; failing to stop for
police, G.L. c" 90, $ 25; and resisting arrest, G.L. c. 268, * 328. On May 13, 2013, the
defendant, after the requisite colloquy, pled guilty to assault and battery on a police officer,
rThe prior proceedings are based on the criminal docket for 1185CR00336, attached as
Commonwealth Exhibit A.
unlawfully carrying a loaded firearm, as a career criminal, possessing a firearm with defaced
serial numbers, vandalizing property, negiigent operation of a motor vehicle, operating a motor
vehicle with a suspended license, and failing to stop for police. The remaining charges were
dismissed. On the same date, the plea judge, Ricciardone, J., sentenced the defendant to the
agreed-upon term of three to seven years in state prison for unlawfully carrying a loaded firearm,
as a career criminal and, on the remaining convictions, to five years of probation to begin on and
after his state prison sentence.
On September 14,2011, the defendant filed apro-se
criminal conviction and sentence and for a new trial.
motio
On
n to vacate the armed career
November 14, 2017, the
Commonwealth'sfor a new triai as
Commonwealth was ordered to respond within sixty days. On January 16, 2018, the
Commonwealth filed a motion to respond to the defendant's motion after a transcript to the plea
coiloquy was produced. On January 26, 2018, the defendant wrote a letter in response to the
Commonwealth's motion and provided a copy of the transcript.
At the plea colloquy, Judge Ricciardone ascertained from the parties that that there was
an agreed-upon sentencing recommendation of three to seven years in state prison on the career
criminal firearm offense and five years of probation to begin on and after the prison sentence for
the remaining convictions. Plea.3-4. The judge had the prosecutor outline the maximum
penalties on all the charges to which the defendant was pleading guilty, including any mandatory
minimum sentences. Plea.4-S. Judge Ricciardone informed the defendant that he would be
asking questions to ensure that the defendant was voluntarily, intelligently, and knowingly
2 The facts are based upon the transcript of the plea colloquy attached as
Exhibit B. Citation format will be as follows: to the defendant's motion"D.M.[page];" and to the transcript of the plea hearing as !'Plea.[page]."
pleading guilty. Plea.S. The defendant was sworn in. Pea1.6. The judge instructed the
defendant that if he did not understand something, he should intemrpt the judge and let him
know or let his attorney know" Plea.6.
Judge Ricciardone inquired into the defendant's place of birth, age, education, and
employment. Plea.6-8. He ascertained that the defendant was not being treated for any mental,
psychological, or emotional illness, and that he was not under the influence of any alcohol or
drugs.. Plea.8-9. The judge also confirmed that the defendant had executed a waiver of rights
form and had gone over the waiver with his attorney" Plea.l "
Judge Ricciardone verified that the defendant had gone over with his attorney the nature
and the elements of the charge to which he was pleading guilty. Plea.9. Defense counsel further
verified that the defendant understood the nature of the charges and that he had spent time with
the defendant going over the charges. Plea.9. Defense counsel also confirmed that he had spent
"considerable time" going through the prospects of a trial with the defendant, including possible
defenses and testimony. Plea.10.
The judge verified that the defendant understood that he was pleading guilty to
possession of a firearm with an enhanced penalty due to a prior assault and battery conviction.
Plea.10-11. Judge Ricciardone, after asking for the defendant's record, noted that the defendant
has "had a lot of cases in court before." Plea.l 1 He then outlined all of the charges to which the
defendant.was pleading guilty. Plea.11. Defense counsel gave a brief summary of the facts of
the case. Plea.l\. Judge Ricciardone confirmed that the defendant had been charged with "three
predicate offenses" which would result in a mandatory minimum sentence of fifteen years in
prison but that he was pleading guilty to one predicate offense which had a maximum sentence
of fifteen years in prison. Plea.l3.
The defendant admitted as true the following facts recited by the Commonwealth:
This is from February 13, 2011. In the early morning hours -- all of this occurredin the city of Worcester, and all the roads mentioned will be public ways in the city. Inthe early morning hours, two a.m. or so, Officer Sam Rivera reported -- he broadcasthearing three or several gunshots, three or more, in the area of Fox Street. Other officersthat were close, they responded.
Officer James Foley was there flust. He encountered the defendant, as counselmentioned to you, parked in the middle of the road, in the opposite direction of thecruiser, blocking the cruiser's path in the area of 35 Fox Street.. .
Officer Foiey approached the vehicle on foot. And before -- just as he was aboutto reach the vehicle, the defendant put the car in gear, accelerated backwards down to thenext intersection and started racing off, despite the officer's command to stop. Hebroadcast a description of the vehicle.
Officer Candelaria was nearby. He picked up the pursuit right away. The pursuitwound up going over several streets, including Providence and Jefferson Streets, AetnaStreet, going through a red light, going down to Cutler Street. He actually stopped andstarted going backwards initially towards the cruiser. The cruiser had to stop and gobackwards, as weil. Then he accelerated again. He went into an intersection, striking amotor vehicle that was parked in the road, which is the vandalism charge, and raced awayfrom that.
He continued over to the intersection of Massassoit, where he lost control. Thiswas -- the snowbanks were high, and there was deep snow in the area at that time. Helost control of the vehicle, crossed into the opposite lane, onto a snowbank, wentairborne, struck a utility po1e, and then the car flipped over.
Officer Candelaria was right there immediately. The defendant climbed out of thedriver's side, looked at the offtcer, went for his waistband. The officer drew on him,ordered him to stop. The defendant turned around and started running. The officerreholstered and made quick pursuit. The defendant was slowed down by the deep snowthere, among other things, and was able to catch the defendant quickly. The defendantdid swing around and struck the officer in the face, but he was put down quickly byOfficer Candelaria and another officer who was there as backup.
He was placed in custody at that point. Officers went back to the motor vehicleand saw on the roof of the car, upside down, a stocking -- a gun in a stocking. Theydidn't go into the car. Police policy in Worcester is that they don't need to secure it bygrabbing it, to leave it be. They could see that it was a gun, and they called crime sceneservices. They responded and, in fact, they retrieved a nine millimeter handgun from themotor vehicle.
Other officers went back, including the crime scene unit, went back to the initialencounter at Fox Street and recovered some casings there, also nine millimeter. Theanalysis showed that the cartridge, the live reunds were of the same caliber that would gowith that handgun. The gun was in working order.
The defendant did not have a right to possess a handgun. He was not licensed.His motor vehicle license had been suspended since 2008. The handgun -- on furtheranalysis, the serial number had also been defaced, scratched out. So those are theallegations as to the crime itseif.
As to the predicate offense, he was convicted in 2005 of a domestic assault andbattery, Docket Number 05-626094, Worcester District Court. The allegations of thatdomestic, for the A&B predicate, we have to show violence; that he, on or about July 13,
2005, he struck his girlfriend at the time in the face and shoved her down on the bed.Those are the ailegations of assault and battery to which he pled guilty under the docketnumber.
Plea.l4-11. The defendant affirmed that he wished to plead guilty to all the offenses. Plea.l8.
Judge Ricciardone advised the defendant of all the rights he would be waiving by
pleading guilty. Plea.18-21. ln particular, the judge ascertained from the defendant that he
understood that, by pleading guilty, he was "waiving any motions that may be pending now, but
you are also waiving the right to appeal any pre-trial rulings that may have already been made."
Plea.Zl. The judge further verified that the defendant was pleading guilty of his own free will,
had not been threatened or pressured, and had not been promised anything in order to make him
plead guilty. Plea.ZL. Judge Ricciardone ascertained that the defendant had had enough time to
fully discuss with his attorney his case, rights, defenses, and possible consequences of pleading
guilty. Plea.Z3. He verified that the defendant felt his attomey acted in his best interest and that
he was "fuIly satisfied" with his attomey. Plea.23. The judge also advised the defendant of the
immigration warning. Plea.25-26.
Judge Ricciardone ascertained from the defendant that he understood he was "being
charged with a crime that involves an enhanced penalty or a more serious crime," in this case, "a
firearm as a career criminal, with a prior predicate offens e." PIea.26. He warned the defendant
that, by pleading guilty, he could face enhanced penalties in the future. Plea.26. The defendant
replied that he understood "because that's how [he] kind of got into this." Piea.26. The judge
also advised the defendant that his driver's licenses would be suspended and that he would be
required to provide a DNA sample for inclusion in the DNA data base system. R.27. The
defense counsel gave a brief summary of the defendant's background. Plea.28.
Judge Ricciardone accepted the defendant's guilty plea, found that there was a factual
basis for the plea, that the defendant was fully competent, that the defendant understood the
rights he was waiving, and did so voluntarily and intelligently. Plea.Z9. The defendant tendered
his guilty pleas. Plea.30-31. The judge imposed the agreed upon sentence. Plea.31-33. At the
request of the Commonwealth, the charges of failure to stop and possession of ammunition
without an FID card, as a career criminal, were dismissed. R.33.
Arzument
This Court should deny the defendant's motion to withdraw his guilty plea, where therecord indicates that the defendant knowingly and voluntarily pled guitty to unlarvfullycarrying a loaded firearm, as a career criminal, and where the defendant waived allnonjurisdictional defects by pleading guilty.
An attack on the validity of a guilty plea is properly made by and treated as a motion for
new trial pursuant to Mass. R. Crim. P. 30(b), 378 Mass. 900 (1978)." Commonwealth v.
Pingaro,44 Mass. App. Ct. 4L, 47-48 (1997) (citation omitted). "A judge may grant such a
motion only if it appears that justice may not have been done." Commonwealth v" Fanelli, 412
Mass. 497, 504 (1997) (citation omitted). "Judges are to apply the standard set out in Mass. R.
Crim. P. 30(b) rigorously, and 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." Id. (internal citation omitted).
"Like all such motions, [a motion to withdraw guilty pleas] is addressed to the sound
discretion of the motion judge . . . [whose] disposition of the motion will not be reversed unless
it is shown to be an abuse of discretion that produces a manifestly unjust result." Pingaro, 44
Mass. App. Ct. at 48 (internal citations omitted). Similarly, the decision whether to hold a
hearing on the motion "is a decision which rests in the sound discretion of the judge based on a
determination whether the motion and affidavits raise a substantial issue," Commonwealth v.
McGann,2O Mass. App. Ct. 59,62 (1985). "The judge may rule on the issue or issues presented
by such motion on the basis of the facts alleged in the affidavits without further hearing if no
substantial issue is raised by the motion or affidavits." Mass. R" Crim. P. 30(c)(3). "The
credibility, weight and impact of the affidavits in support of the motion are entirely within the
judge's discretion. [The judge] is not required to believe them even if they are undisputed."
Pingaro,44 Mass. App. Ct. at 48. "To the extent that the defendant's motion [i]s based on facts
which were neither agreed upon nor apparent on the face of the record, he ha[s] the burden of
proving such facts." Commonwealth v. Bernier, 359 Mass. 13, 15 (1971) (citation omitted).
When a defendant's claim of involuntariness rests entirely on unsupported assertions in his
affidavit, a judge is free to reject the affidavit as self-serving and contradictive of previously
sworn statements. Commonwealthv. Hiskin,68 Mass. App. Ct. 633,6+0 (2007).
The defendant now claims that he is entitled to a new trial on the career criminal portion
of the firearm conviction, asserting that the United States Supreme Court recently ruled that the
"residual clause" of the armed career criminal statute is unconstitutional, there was insufficient
evidence presented to the grand jury of the three predicate offenses necessary to sustain his
career criminal indictment, and the indictment charging the defendant as a career criminal "did
not provide sufficient information of the alleged predicate convictions." D.M.1-6. The
defendant also contends that his plea counsel rendered ineffective assistance by providing
"incorrect legal advice." D.M.1. Because the record establishes that the defendant knowingly,
inteiligently, an6 voluntarily pled guilty to unlawfuily canying a loaded frearm as a career
criminal, because the defendant's current assertions are completely belied by the record, and
because the defendant waived all nonjurisdictional defects by pteading guilty, this Court should
deny the defendant's motion.
A guilty plea must be inteliigently and voluntmily made. Commonwealth v. Brannon 8.,
66 Mass. App. Ct. 97, 98 (2006). A plea is intelligently made when the defendant has
knowledge of the elements of the charges against him. Id. This may be established by the
defendant's stated admissions to facts recited during the plea colloquy which constitute the
unexplained elements or by a representation that the elements of the charges being pled to have
been explained to the defendant. Commonwealth v. Correa,43 Mass. App. Ct. 714,717 (L997).
A guilty plea is voluntarily made if it is free "from coercion, duress, or improper inducements."
Commonwealth v. Duest,30 Mass. App. Ct 623, 631(1991). In addition, there is "a separate
and distinct" inquiry into "whether the record of the plea establishes a factual basis for the crime
charged." Commonwealthv. Hart,467 Mass. 322,326 (2014).
A "defendant's sworn statements during a guilty plea colloquy are statements of
consequence and not mere conveniences later to be discarded." Hiskin,68 Mass. App. Ct. at
634. The defendant's statements at the plea colloquy "have undeniable bearing and heft in
considering a later claim to the contrary." Id. When assessing the intelligence and voluntariness
of a defendant's plea, the courts rely on the defendant's sworn responses to the judge's informed
questions. Id. at 638. These rcsponses "must notbe disregarded on the later assertion that [the
defendantl had his fingers crossed." Id. at 640"
Here, the record establishes that the defendant knowingly and intelligently pled guilty to
unlawfully canying a loaded firearm as a career criminal. Since the defendant is only
challenging the career criminal portion of the plea, the Commonwealth will only address the
sentencing enhancement portion of the conviction. The armed career criminal act (ACCA)
"imposes an enhanced sentence on an individuat.who is convicted of possession of a firearm if
that person previously has been convicted of a 'violent crime' or a serious drug offense."
Commonwealth v. Beal, 474 Mass. 341, 349 (2016). Under the ACCA, a "violert crime" is
defined as "any crime punishable by imprisonment for a term exceeding one year ... that: (i) has
as an element the use, attempted use or threatened use of physical force or a deadly weapon
against the person of another; (ii) is burglary, extortion, arson or kidnapping; (iii) involves the
use of explosives; or (iv) otherwise involves conduct that presents a serious risk of physical
injury to another." Id. Thus, to constitute as a "violent crime" under ACCA "the crime must
fall within the scope of either (1) the force clause; (2) the enumerated crimes provision; or (3) the
residual clause." Id.
Ia Johnson v. United States, the United States Supreme Court concluded that the residual
clause of the "violent felony" provision under the federal armed career criminal act was
unconstitutionaliy vague. 135 S.Ct. 2557,2555-56 (2015). A "violent felony" under the residual
clause was defined as a crime "punishable by imprisonment for more than one year and
'otherwise invoive[d] conduct that present[ed] a serious potential risk of physical injury to
another."' Id. (citations omitted); 18 u.s.c. * 92aG)Q)@). Given that the Massachusetts ACCA
was "almost identical" to the federal ACCA, the Supreme Judicial Court (SJC) concluded that
the residual clause in the Massachusetts ACCA was uncorstitutionally vague. Beal,474 Mass.
at 351. The SJC further held that, under the assault and battery statute, the "harmful battery and
reckless battery" theories of that statute qualified as a "violent crime" but the "offensive battery"
theory which would include actions such as "tickling and spitting" did not quatify as a violent
crime. Id. at 351-52. Finally, the SJC concluded that submitting a certified copy of the
defendant's conviction for assault and battery at trial was insufficient to establish a "violent
crime." Id. at 352.; Commonwealth v. Eberhart, 461 Mass. 809, 819 (z}lz) (a certified
conviction of assault and battery is insufficient to prove beyond a reasonable doubt that the
defendant committed a "violent crime" for the purpose of sentence enchantment).
Here, the facts described by the Commonwealth, and admitted as true by the defendant,
established the intelligence and adequate factual basis for the plea. Here, the defendant admitted
that he was convicted in 2005 of a domestic assault and battery in which he, on or about July 13,
2005, struck his then girlfriend in the face and shoved her down on the bed. These actions
constituted a violent assault and battery and sufficient to prove that the defendant previously had
committed a "violent crime" under the force clause. See Commonwealthv. Suber,92 Mass. App.
Ct. ll27 (2018) (unpublished) (sufficient evidence to establish that aggravated assault and
battery was a violent crime under the force clause where officer testified he observed the victim
was three months pregnant, crying, scared, and had a swollen face and that victim spoke about
assault). As such, the fact that the SJC and the United States Supreme Court recently concluded
that the residual clause was unconstitutionally is immaterial. Thus, the record of the plea
colloquy establishes the intelligence of the defendant's plea and the factual basis to support the
defendant's conviction of unlawful1y carrying a loaded fitearm, as a career criminal.
Moreover, the defendant has waived any claims regarding the sufficiency of the
evidence presented to the grand jury or to the indictment. A guilty plea, once accepted, "leads to
a final judgement of conviction," is "conclusive," and, "by its terms, waives all nonjurisdictional
defects." Commonwealth v. Cabrera,449 Mass. 825, 830 (2007); Commonwealth v. Berrios,
447 Mass.7Ol,lL5 (2006) (guilty plea bars assertions of constitutional challenges to pretrial
proceedings); Commonwealth v. Buckley, T6 Mass. App. Ct. 123, 128-29 (2010) (by pleading
guilty, the defendant foreclosed his right to request a decision by an appellate court on
nonjurisdictional legal questions which he raised or could have raised prior to entering the guilty
10
I
pleas). This rule "prevents defendants from 'waiv [ing] or terminat[ing] a trial by pleading
guilty, sampl[ing] the penalty and then elect[ing] to litigate preexisting nonjurisdictional legal
questions."' Commonwealth v. Beruios,84 Mass. App. Ct. 521, 524-2-5 (2013) (citations
omitted) (Jurisdictional defects are those that go to the "very power of the State to bring the
defendant into court."). Here, as argued above, the defendant knowingly and voluntarily pled
guilty to being a career criminal. As such, the defendant has waived any claim to the sufficiency
of the evidence at the grand jury and to any alleged error in the indictment. See Commonwealth
v. Sylvia,89 Mass. App. Ct. 279, 287 (2016) (by pleading guilty, the defendant waived any
challenged to the sufficiency of the evidence presented to the grand jury). The defendant's guilty
plea has rendered any such defect irrelevant. In particular, the defendant's claim regarding the
two other previous convictions are wholly irrelevant where the defendant only pled guilty to one
prior "violent crime," the domestic assault and battery. This Court must affirm the defendant's
conviction.
Finally, the defendant simply asserts that his plea counsel provided ineffective assistance
by providing the defendant with "incorrect legal advice." D.M.l. As argued above, the
defendant did not pled guilty to committing a violent crime under the now unconstitutional
residual clause, but rather pled guilty to a violent crime under the force clause. Moreover, the
Johnson and Beal cases which rendered the residual clause unconstitutional were not decided
until well after the defendant's guilty plea. Because there was no emor, the defendant's claim
that trial counsel was ineffective for providing incorrect legal advice fails as well. See
Commonwealth v. Bart 8.,424 Mass. 911,914 (1927). Furthermore, the Commonwealth notes
that, during the plea colioquy, the defendant averred that he had spent considerable time going
over the charges with defense counsel and that he was "fully satisfied" with his attomey. These
1l
avernents are "statements of consequence and not mere conveniences later to be discarded."
Hiskin,68 Mass. App. Ct. at 634. This Court should deny the defendant's motion.
Conclusion
For the foregoing reasons, the defendant's motion to vacate his armed career criminal
conviction and sentence, and for a new trial should be denied without an evidentiary hearing.
FOR TIIE COMMON-W-EALTH:
DONNA-MARTE HARANASSISTANT DISTRICT ATTORNEYCourthouse Room G301225M:ant StreetWorcester, Massachusetts 0 1608
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was
Wentworth, Pro-se, Pondville Correctional Center, P.O. Box 146, Norfolk,class mail, postage prepaid, on April3,2018.
Donna-Marie Haran
served upon EzaraMA 02056 by first
t2