No. 88-1624-1628Commonwealth of Massachusetts Superior Court CRIMINAL ACTION MIDDLESEX, ss.
May 1, 1996
FINDINGS AND RULING ON DEFENDANT’S “MOTION TO WITHDRAW PLEA OF GUILTY AND FOR NEW TRIAL”
FREMONT-SMITH, JUSTICE.
On May 3, 1989, Judge John P. Sullivan accepted defendant’s change of plea to guilty on two counts of murder, one count of arson and five counts of assault and battery with a dangerous weapon. After pleading guilty, defendant was sentenced to concurrent life terms on the murder indictments, concurrent 10 to 20 year terms on the arson indictment and a concurrent 7 to 10 year terms on the assault and battery with a dangerous weapon indictments.
Prior to his guilty plea, defendant, after having been read his Miranda rights, admitted to having set a fire in the dwelling house in the early morning hours of May 15, 1988, as a result of which two persons died and a number of other residents were taken to the hospital with serious injuries.[1]
In his motion, it is asserted that the plea should be withdrawn and a new trial ordered because defendant relied upon mis-statements of law by the judge in the sentencing colloquy, so that the plea was not offered in a knowing and voluntary manner and was not otherwise based upon his admission of facts stated by the Assistant District Attorney at the plea colloquy. See: Henderson v. Morgan, 426 U.S. 637 (1976). However, on the facts of this case, defendant has failed to prove that his guilty plea was unknowing or involuntary or that justice may not have been done.
It is true that, in the course of the colloquy, the judge did not ask defendant whether he admitted the facts as stated by the district attorney, but the defendant, subsequent to the Assistant District Attorney’s recitation of facts, confirmed that he still wished to change his plea to guilty, thereby admitting to the essential facts. Defendant, moreover, had previously admitted the essential facts in a statement which he had given to the police.
And while it may be argued that Judge Sullivan’s explanation of the elements of malice required for second degree murder were less than clear or precise and might have also encompassed the lesser offense of manslaughter, defendant was clearly advised of the murder charge by the judge and clearly offered to plead guilty to murder.
The situation here, moreover, is quite different from that in Henderson v. Morgan, 426 U.S. 637 (1976), where the Supreme Court found a plea was involuntary because the defendant was never informed, either by defense counsel or the Court, as to the essential elements of murder in the second degree, i.e., where the defendant never received “real notice of the true nature” of the charge to which he pleaded guilty. Here, on the contrary, it was stipulated on the record that defendant’s counsel, prior to defendant’s guilty plea, had fully and accurately explained to defendant; and defendant had understood, the essential elements of the crimes to which he was pleading. Accordingly, Henderson is inapplicable and the guilty plea was knowing and voluntary under the criteria of Henderson, supra, and Commonwealth v. Begin, 394 Mass. 192, 197-198 (1985).
In short, in view of the stipulation that defendant’s counsel, at the time of the plea colloquy, had fully explained to defendant the essential elements of the crimes to which he intended to plead guilty, and that he understood his counsel’s explanation, no reasonable inference can be drawn that any confusion in Judge Sullivan’s subsequent explanation of the third prong of malice affected in any way defendant’s previously-announced decision to change his plea.
Accordingly, defendant’s motion is DENIED.
Thayer Fremont-Smith Justice of the Superior Court
Dated: May 1, 1996