SJC: hearing required before OUI defendant can withdraw plea

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The state was entitled to an evidentiary hearing before a District Court judge granted an OUI defendant’s motion to withdraw a guilty plea based on government misconduct involving the calibration of Alcotest 9510 breath-test devices, the Appeals Court has decided.

Defendant Charles Crump was sentenced to two years in prison in May 2013 after he pleaded guilty to operating a motor vehicle under the influence of intoxicating liquor, third offense, and other charges related to an April 2013 accident. The OUI charge was predicated on the results of an Alcotest 9510 breath test that recorded him as having a blood alcohol content of 0.14 percent.

The defendant moved to vacate his guilty plea after District Court Judge Robert A. Brennan in his 2017 decision in Commonwealth v. Ananias recognized the “presumptive unreliability” of thousands of breath tests administered by police officers using the Alcotest 9510 device.

Chicopee District Court Judge Charles W. Groce III granted Crump’s motion without conducting an evidentiary hearing and issuing findings of fact.

The commonwealth appealed, arguing the lower court should have conducted an evidentiary hearing despite the presumptive unreliability of the breath test. A unanimous panel of the Appeals Court agreed, rejecting the defendant’s contention that his guilty plea was also plainly invalid given that a high-profile scandal had irreparably damaged the credibility of the state trooper, Robert Church, who took him into custody and administered the breath test. In 2020, the State Police disciplined Church and nearly two dozen other troopers for submitting fraudulent overtime claims.

The panel hinged its decision that an evidentiary hearing was in order on the Supreme Judicial Court’s guidance in Commonwealth v. Hallinan. The 2023 decision held that the “extensive” misconduct by the Massachusetts Office of Alcohol Testing revealed in Ananias gave rise to a presumption in favor of OUI defendants seeking new trials or the withdrawal of guilty pleas.

Writing for the Appeals Court, Judge Vickie L. Henry observed that, under Hallinan, while the defendant is entitled to rely on the presumption when seeking to withdraw a plea, for such relief to be granted the defendant must also show that the government misconduct exposed in Ananias influenced the defendant’s plea decision or, in other words, was “material” to that choice.

“These showings are inherently case specific,” Henry wrote. “The Supreme Judicial Court elaborated on how a defendant can, as required, ‘demonstrate a reasonable probability that [the defendant] would not have pleaded guilty had [the defendant] known of [the government] misconduct.’ … ‘Establishing such a reasonable probability requires examining the totality of the circumstances,’ guided by several factors. …”

Moreover, given the questions that would need to be addressed in the lower court on remand — and given that there are “potentially thousands of similarly situated defendants” — Henry highlighted important factors to be gleaned from SJC and Appeals Court precedent to be considered in the grant or denial of a defendant’s motion for a new trial based on the governmental misconduct involving the 9510 breath test devices.

For example, Henry wrote that motion judges should consider the “strength” of plea counsel’s affidavit as to how they would have advised their clients had they known a breath test would be inadmissible.

She also observed that Hallinan instructs motion judges to consider whether a client’s guilty plea obtained a plea agreement in which the benefits outweighed the value of the evidence of an unreliable breath test result.

“This might include considering whether there were charge concessions, sentences were made concurrent with other charges, and whether alcohol impairment was an element of the other charges,” Henry wrote. “Here, for example, the plea agreement allowed the defendant to serve the committed sentences concurrently with committed sentences imposed two weeks earlier in an unrelated complaint for assault and battery by means of a dangerous weapon and OUI, third offense. The defendant also avoided indictment for OUI, fourth offense … .”

The 21-page decision is Commonwealth v. Crump, Lawyers Weekly No. 11-014-25.

Handwriting on the wall?

The Hampden County District Attorney’s Office declined a request for comment.

Springfield attorney Erica M. Bruno, who represents the defendant on appeal, also declined to be interviewed.

Springfield attorney Joseph D. Bernard represented the defendant until withdrawing from the case after filing his client’s appeal. Bernard said the Appeals Court misapplied Hallinan.

“The court seemed to downplay the fact that [Crump’s] breath test was 0.14 [percent],” Bernard said. “That’s a fairly high reading. [On the other hand,] there’s no video evidence from the Massachusetts State Police, there’s no field sobriety test, and [the state’s] case rises and falls on the word of a trooper who had a history of being constantly reprimanded for veracity-related issues.”

Nonetheless, Bernard said he did not think the ruling requiring an evidentiary hearing was that great of a setback.

“The handwriting is on the wall,” Bernard said. “The practical result should be exactly the same.”

James P. McKenna, a criminal defense attorney in North Grafton, said he had no qualms with the panel finding it necessary that there be an evidentiary hearing.

“It shouldn’t be a general rule, but on these facts, it makes sense,” he said.

According to McKenna, an evidentiary hearing ordinarily should not be required in cases in which an OUI defendant seeks to withdraw a guilty plea based on the government misconduct exposed in Ananias.

Here, you have two separate ‘baskets’ of misconduct, which, in theory, could have been material to that plea.

What McKenna found most interesting about the case was that it involved the “intersection” of two major scandals, the one involving unreliable breath tests, and the other concerning fraudulent overtime claims by State Police troopers. That in turn raised the question of whether Crump could satisfy the so-called Scott-Ferrara test, derived from the 1st Circuit’s 2006 decision in Ferrara v. U.S. and the SJC’s 2014 decision in  Commonwealth v. Scott, McKenna said.

Under the Scott-Ferrara standard, a defendant seeking to withdraw a guilty plea based on government misconduct, apart from showing egregious government conduct occurred in one’s case, must further show such misconduct materially influenced the decision to plead guilty.

“Here, you have two separate ‘baskets’ of misconduct, which, in theory, could have been material to that plea,” McKenna said.

Withdrawal of guilty plea

According to court records, at approximately 2 a.m. on April 9, 2013, Trooper Church found the defendant seated in his car in the left lane of Route 391. According to the trooper, it appeared the defendant had “totalled” his vehicle in a one-car collision.

Unhurt, the defendant jumped out of his car when the officer approached. According to Church, the defendant appeared unsteady on his feet and slurred his words so he decided to place him in handcuffs as a precaution. The trooper reported that before he could Mirandize the defendant, Crump admitted consuming two to three 40-ounce beers.

After a records check revealed that Crump had had his license revoked and that the license plates on his vehicle were stolen — but without performing field sobriety tests — Church placed the defendant under arrest.

At the Springfield State Police barracks, the defendant voluntarily took a breath test that recorded a BAC of 0.14 percent.

The defendant was charged with OUI, fourth offense. He also faced charges of operating with a suspended license (subsequent offense), attaching number plates with intent to conceal a vehicle’s identity, operating an uninsured vehicle, receiving stolen property, and reckless operation.

In May 2013, the defendant pleaded guilty to OUI, third offense, and the other criminal charges. Pursuant to his plea agreement, the court sentenced him to two years in prison on the OUI charge. He received lesser concurrent terms on two other charges, to be served concurrently with sentences imposed two weeks earlier in an unrelated case.

In 2022, the defendant moved to vacate his guilty plea on the ground that he would not have entered the plea had he known of the government misconduct concerning breath tests administered using the 9510 device.

In addition to the defendant’s own affidavit, plea counsel submitted an affidavit stating that knowledge of the misconduct “may have affected” his advice to the defendant on whether to accept the plea agreement.

The defendant further asserted there were grounds to suppress evidence of his admissions at the scene of the accident.

The state opposed the motion on the ground that the defendant could not satisfy the Hallinan factors for withdrawing a guilty plea.

In response, the defendant raised a second argument that, with the breath test result precluded under Ananias, the commonwealth’s case turned on Church’s credibility, which had been irreparably damaged in the OT scandal.

Following a nonevidentiary hearing, Judge Groce in October 2023 granted the defendant’s motion to withdraw his guilty pleas to all charges arising from his 2013 arrest.

Evidentiary hearing ordered

Henry wrote that the record did not support a conclusion under Hallinan that there was a reasonable probability the defendant would not have pleaded guilty had he known of the cited government misconduct.

“To be sure, the Commonwealth acquiesced in the judge’s suggestion that a motion to suppress a defendant’s admissions was ‘something any defendant and defense attorney would have thought about,’” Henry wrote. “But that is not dispositive. The Commonwealth did not agree, nor did the judge conclude, that such a motion would have had enough likelihood of success in this specific case to have been a material factor bearing on the defendant’s decision whether to plead guilty. Nor are we willing to assume that the short police report stated every detail that transpired and that might be relevant to a suppression motion. Without findings on these issues, ‘we cannot determine whether a reasonable person in the defendant’s position’ would have pursued the motion to suppress rather than agree to the plea.”

Similarly, the record did not establish that a not guilty plea would have entered had the defendant and defense counsel been aware of Trooper Church’s misconduct, Henry wrote.

“[T]he Commonwealth did not agree that this information was known at the time the defendant pleaded guilty in 2013, or was knowable had the high breathalyzer test result not deterred investigation in the sense that such an inculpatory result made any investigation futile,” Henry wrote. “Had the defendant’s investigation not been deterred, and unless Church’s misconduct were to rise to governmental misconduct such that it is subject to its own Scott-Ferrara analysis, the misconduct would have needed to have been at least reasonably knowable to the defendant before the plea for it to have played a role in his decision whether to plead guilty. On this record, the judge did not and had no basis to find this to be the case.”