Commonwealth v. Maryellen Vesprini.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1372

COMMONWEALTH

vs.

MARYELLEN VESPRINI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Maryellen Vesprini, appeals from the plea

judge's denial of her motion to withdraw her admission to

sufficient facts on a charge of operating a motor vehicle while

under the influence of alcohol (OUI), in violation of G. L.

c. 90, § 24 (1) (a) (1). We affirm.

Background. Based on events that occurred on Saturday,

April 2, 2016, a complaint issued in the Newburyport District

Court charging the defendant with OUI and citing her for driving

without headlights, G. L. c. 90, § 7. At arraignment on Monday,

April 4, 2016, the defendant admitted to sufficient facts for

the OUI charge. Pursuant to G. L. c. 90, § 24D, the judge

imposed the disposition for a first-time offender: the case was
continued without a finding for one year, conditioned on the

defendant attending a driver alcohol education program, and her

driver's license was suspended for forty-five days.1 The judge

found the defendant not responsible for the civil infraction.

In 2018, the defendant was arrested for a second offense

OUI. She then moved to withdraw her admission to sufficient

facts in this case. After a hearing, the plea judge denied the

motion. The defendant did not appeal.

In July 2023, the Supreme Judicial Court ruled that as a

result of failures by the State police office of alcohol testing

to calibrate and certify Draeger Alcotest 9510 machines prior to

April 18, 2019, a defendant who seeks to vacate a guilty plea to

OUI involving test results from those machines "is entitled to a

conclusive presumption that egregious government misconduct

occurred." Commonwealth v. Hallinan, 491 Mass. 730, 748 (2023).

Because her 2016 OUI fell into that category, the defendant,

represented by new counsel, filed a second motion to withdraw

her plea, arguing that had she known that the test results from

the Alcotest 9510 were inadmissible, she would not have admitted

to sufficient facts. In support of her motion, the defendant

submitted her own affidavit, averring that on the morning of her

As a first-time offender, the defendant could, on entering
1

a driver alcohol education program, apply for a limited license
for hardship purposes. See G. L. c. 90, § 24D, 4th par.

2
arraignment her plea counsel provided her with a worksheet

titled "BREATH TEST - ALCOTEST 9510" that he filled out. The

defendant averred that her plea counsel "told me that the Breath

test from the ALCOTEST 9510 would be admissible at trial" and

"[a]t no time did my attorney even mention the possibility of

challenging the ALCOTEST 9510 results." In contrast, the

worksheet noted that the police report failed to document which

officer observed the defendant for fifteen minutes before the

test to ensure that she did not put anything in her mouth during

that time, and as a result of that failure, "if you ultimately

decide to go to Trial, we MAY be able to have the breath test

excluded." The defendant did not support her motion with any

affidavit of her plea counsel, nor did she provide any

explanation for not having submitted one.

The same judge who had presided over the defendant's

admission to sufficient facts in 2016 and denied her first

motion to withdraw that admission in 2019 considered the motion.

The defendant did not provide the judge with a transcript of the

plea hearing, but her counsel told the judge that he had

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"listened to" the recording.2 The judge asked the clerk for the

"police report" and the "green sheet."3

The judge denied the defendant's motion in a memorandum of

decision which outlined facts as set forth in the police report

supporting the application for the criminal complaint, including

the following. At about 9:22 P.M. on April 2, 2016, a Salisbury

police officer saw a vehicle driving without headlights and then

stopping at a red light while straddling lanes. When the

officer stopped the vehicle, the defendant was the driver and

had a moderate odor of alcohol, red and glassy eyes, and slurred

speech. The defendant first denied that she had had anything

alcoholic to drink, then admitted she had "like one glass of

wine." The defendant attempted five field sobriety tests.4 On

the walk-and-turn test, the defendant never walked heel to toe,

2 Nor has the defendant included a transcript of the plea
hearing in the record appendix. As the moving party in the
District Court and the appellant on appeal, it was her
obligation to do so. See Mass. R. A. P. 18, as appearing in 481
Mass. 1637 (2019).

3 The "green sheet" is the tender of plea or admission and
waiver of rights form that the defendant would have signed when
she made her admission to sufficient facts. See Commonwealth v.
Lastowski, 478 Mass. 572, 576 n.4 (2018). The defendant did not
include a copy of the green sheet in the record appendix.

4 The judge found that the defendant "failed" the horizontal
gaze nystagmus test, noting that the result of that test was
"typically not admitted into evidence" but corroborated the
officer's observations. Such test results are admissible if
supported by expert testimony. See Commonwealth v. Sands, 424
Mass. 184, 188 (1997).

4
kept her arms outstretched for balance, swayed throughout the

test, and stopped at the turn and asked, "What do I do now?" On

the one-legged stand, the defendant kept her arms outstretched,

swayed at the hips throughout, put her foot down three times,

and near the end of the test bent her knee. On both the

counting backwards test and the alphabet test, the defendant

performed satisfactorily. The defendant then took a

breathalyzer test on a portable device (PBT),5 which read her

blood alcohol at .123. At the police station, the defendant

took another breathalyzer test, this time on an Alcotest 9510

machine, which provided two readings, five minutes apart,

of .105 and .104. The defendant then admitted that she had had

two glasses of wine that evening.

Discussion. A motion to withdraw an admission to

sufficient facts is treated as a motion for a new trial under

Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).

See Hallinan, 491 Mass. at 744. A judge may grant a motion for

a new trial at any time if it appears that justice may not have

been done. Id. We review a judge's denial of a motion for a

new trial for abuse of discretion or significant error of law.

Id. Particular deference is given to the rulings of a motion

judge where, as here, the motion judge served as the plea judge

5 That device was not an Alcotest 9510.

5
in the same case. See Commonwealth v. Sylvester, 476 Mass. 1, 6

(2016).

The defendant argues that in denying her motion to withdraw

her admission to sufficient facts, the judge committed errors of

law and abused his discretion by misapplying the holding of

Hallinan. The defendant also contends that the judge improperly

took judicial notice of plea counsel's involvement in Alcotest

9510 litigation; and, in weighing the strength of the evidence,

improperly included the breathalyzer test results and the

defendant's admission to sufficient facts. We consider each

argument in turn.

1. Application of Hallinan factors. The defendant argues

that the judge committed errors of law and abused his discretion

in ruling that the defendant had not shown that she would not

have admitted to sufficient facts had she known that the results

from the Alcotest 9510 would be inadmissible.

In Hallinan, 491 Mass. at 750, the Supreme Judicial Court

held that in applying the conclusive presumption of egregious

government misconduct in a case involving improper Alcotest 9510

breath test results, a defendant seeking to vacate a guilty plea

is required only to show that there was a "reasonable

probability" that she would not have admitted to sufficient

facts had she known that the test results would have been

inadmissible. To determine whether such a reasonable

6
probability exists, a court examines the totality of the

circumstances, including the following factors:

"(1) whether evidence of the government misconduct could
have detracted from the factual basis used to support the
guilty plea, (2) whether the evidence could have been used
to impeach a witness whose credibility may have been
outcome-determinative, (3) whether the evidence is
cumulative of other evidence already in the defendant's
possession, (4) whether the evidence would have influenced
counsel's recommendation as to whether to accept a
particular plea offer, and (5) whether the value of the
evidence was outweighed by the benefits of entering into
the plea agreement."

Id., quoting Commonwealth v. Scott, 467 Mass. 346, 355-356

(2014).

As to the first factor, the judge found that "[e]ven

without the [Alcotest 9510] result," the evidence of the

defendant's impairment by alcohol was "strong," and included her

driving without headlights, straddling lanes, slurring her

speech, having glassy and bloodshot eyes, and failing three

field sobriety tests. The judge had also remarked on, and could

consider, the defendant's having lied twice to police: first

she had denied drinking at all, then just before the field

sobriety tests she admitted to one glass of wine, then after her

arrest she admitted to two. Contrary to the defendant's

argument, the judge was well within his discretion in finding

that the evidence against her was "strong." And to the extent

that the defendant finds fault with the judge for having engaged

in only a "conclusory" analysis of the evidence adduced at the

7
plea hearing, we cannot agree, because the defendant had

available a recording of the plea hearing but failed to provide

the judge or this court with a transcript of it. See note 2

supra.

As to the second factor, the judge found that had the case

gone to trial, the Alcotest 9510 results would have been

impeached by the evidence of government misconduct, but because

the test result was .10, that impeachment would not have been

"outcome determinative" because the "crux" of this case was the

arresting officer's observations. Contrast Hallinan, 491 Mass.

at 750-751 (Alcotest 9510 result of .23 was "crown jewel" of

prosecution's case, where police did not observe impaired

driving).

As to the third Hallinan factor, the judge found that at

the time of the defendant's admission to sufficient facts in

April 2016, she "knew or should have known" that the Alcotest

9510 tests were being challenged. Based on the worksheet

captioned "BREATH TEST - ALCOTEST 9510" that plea counsel

provided to the defendant on the morning of her plea, the judge

found that "[c]learly the defendant was put on notice that the

[Alcotest 9510 results] could be excluded." The judge found

that the defendant's affidavit averring that plea counsel told

her that the test results would be admissible was not credible.

We discern no abuse of his discretion. The judge was not

8
required to credit the defendant's self-serving affidavit. See

Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 178 (2018).

Fourth, the judge concluded that the problems with the

Alcotest 9510 would not have influenced plea counsel's

recommendation as to whether the defendant should admit to

sufficient facts. In drawing that conclusion, the judge noted

that resolution of the case by a continuance without a finding

enabled the defendant to avoid a conviction that would appear

permanently on her criminal record. The judge also considered

it "[s]ignificant[]" that the defendant did not offer an

affidavit from plea counsel in support of her motion. Cf.

Commonwealth v. Goodreau, 442 Mass. 341, 353 (2004) (judge who

was not trial judge properly denied motion for new trial without

evidentiary hearing, where trial counsel's affidavit was

"conspicuously silent" on "crucial point").

As to the final Hallinan factor, the judge concluded that

the benefits to the defendant from entering an admission to

sufficient facts outweighed the value of the evidence of

misconduct. In particular, the judge noted that based on her

Alcotest 9510 result of .10, the defendant's driver's license

was administratively suspended for thirty days pursuant to G. L.

c. 90, § 24 (1) (f) (2), but because she was a first-time

offender, if she resolved the case quickly she would be eligible

for a hardship license under G. L. c. 90, § 24D, before that

9
thirty days elapsed. The judge also noted that resolving the

case at arraignment reduced the defendant's legal fees and time

away from work.6

We discern no abuse of discretion in the judge's

conclusion, based on his application of the Hallinan factors,

that the defendant had not shown a reasonable probability that

she would not have admitted to sufficient facts had she known of

the misconduct associated with the Alcotest 9510.

2. Judge's references to extraneous information. The

defendant argues that in denying her motion to vacate her

admission to sufficient facts, the judge improperly considered

extraneous information. She contends that the judge improperly

took judicial notice that at the time of the plea, plea counsel

was involved in the consolidated cases challenging the

reliability of the Alcotest 9510 device, see Commonwealth vs.

Ananias, Dist. Ct., No. 1248CR1075 (Ananias litigation), and in

analyzing whether justice was done the judge improperly

6 The judge observed that resolving an OUI case at
arraignment rather than going to trial significantly reduces
legal costs. Although the observation is supported by common
sense, it would have been better not to rely on it, absent
evidence of the defendant's own fee arrangement at the time of
her plea. But, contrary to the defendant's assertion, nowhere
did the judge suggest that "legal costs alone would be the
driving force in a defendant's decision making," and we decline
to disturb the judge's balancing of the many other factors
properly in play.

10
considered the Alcotest 9510 results and the defendant's

admission to sufficient facts.

a. Plea counsel's involvement in Ananias litigation.

After noting that the defendant had not offered an affidavit

from plea counsel to support her motion, the judge found:

"[P]lea counsel specializes in OUI cases and appears
frequently in this court. He is extremely familiar with
this type of case as well as the strengths and weaknesses
of cases involving BT's. In fact, he was one of the six
attorneys involved in the An[a]nias litigation. He more
than anyone would have known about the BT issues."

The judge noted that in a May 2019 affidavit in support of her

first motion to withdraw her plea, the defendant averred, "Upon

information and belief, my [plea counsel] was not aware of any

potential issues with the breath test or BAC result at the time

I tendered my plea." Discrediting that affidavit, the judge

found: "Nothing could be further from the truth. [Plea

counsel] knew these issues inside and out from his time as one

of the [six] litigators on the Ananias litigation."

Contrary to the defendant's brief, we do not read the

judge's findings to mean that the judge relied on plea counsel's

expertise to find that plea counsel "must have informed [the

defendant] about the [Alcotest 9510] issue." Rather, we

conclude that, to the extent that the judge considered plea

counsel's expertise in OUI cases, the judge did so in finding

not credible the defendant's own self-serving affidavits, which

11
were also contradicted by the "BREATH TEST - ALCOTEST 9510"

worksheet and the lack of an affidavit from plea counsel. See

Commonwealth v. Lys, 481 Mass. 1, 6 (2018) (judge may infer that

absence of affidavit from prior counsel "makes the statements in

the defendant's affidavit less likely to be true").

b. References to test results and defendant's admission to

sufficient facts. The defendant argues that in analyzing

whether justice was done, the judge assessed the strength of the

evidence by improperly considering the Alcotest 9510 results and

the defendant's admission to sufficient facts. The judge found

as follows:

"[T]he Commonwealth's case against the defendant is
particularly strong without the breath test result. The
erratic driving, observations of the officer(s),
performance on the FSTs, the PBT and the BT all support a
just result. The court asked the defendant at the plea
hearing if [s]he admitted to being under the influence of
alcohol and she acknowledged she was." (Emphases added.)

Though it would have been better had the judge omitted from his

recitation of the strength of the Commonwealth's case any

reference to the Alcotest 9510 result or the defendant's

admission to sufficient facts,7 the judge's memorandum repeatedly

makes clear, including in the first sentence quoted above, that

he considered the evidence against the defendant to be

7 The defendant also argues, and the Commonwealth agrees,
that the judge should not have given any weight to the PBT
result, as such results are not of the type "considered valid"
in OUI cases. G. L. c. 90, § 24K.

12
"particularly strong without the breath test result." For the

most part, when the judge referred to the Alcotest 9510 result

and the defendant's admission to sufficient facts, he did so in

the context of applying the Hallinan factors, as discussed

above.

Conclusion. We discern no abuse of the judge's discretion

in his conclusion that the defendant did not show a reasonable

probability that she would not have admitted to sufficient facts

had she known that the Alcotest 9510 results would have been

inadmissible.

Order dated October 6, 2023,
denying motion to withdraw
plea, affirmed.

By the Court (Sacks,
Englander & Grant, JJ.8),

Clerk

Entered: December 13, 2024.

8 The panelists are listed in order of seniority.

13