Commonwealth v. Raymond Melvin.

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

24-P-912

COMMONWEALTH

vs.

RAYMOND MELVIN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Raymond Melvin, appeals from the denial of

his (1) motion to withdraw his admission to sufficient facts to

warrant a finding of guilty and for a new trial, pursuant to

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

and (2) subsequent motion for reconsideration. Because the

judge did not hold a hearing after the Commonwealth filed its

opposition or make findings as necessary to resolve the

defendant's claim that he would have gone to trial in the

absence of the breathalyzer test results, we vacate the order

denying the defendant's motion to withdraw his plea and remand

for further proceedings.
Background. In 2011, a criminal complaint issued in

District Court charging the defendant with operating under the

influence of intoxicating liquor (OUI), G. L. c. 90,

§ 24 (1) (a) (1); possession of an open container of alcohol,

G. L. c. 90, § 24I; and a marked lanes violation, G. L. c. 89,

§ 4A. The OUI charge alleged two alternative theories of proof

for a violation: (1) the "per se" theory, which requires the

Commonwealth to prove that the defendant operated a motor

vehicle "with a percentage, by weight, of alcohol in their blood

of eight one-hundredths or greater"; and (2) the impaired

ability theory, which requires the Commonwealth to prove that

the defendant operated a motor vehicle "while under the

influence of intoxicating liquor." Commonwealth v. Colturi, 448

Mass. 809, 810 (2007), quoting G. L. c. 90, § 24 (1) (a) (1).

According to the complaint application, after receiving a

call that a vehicle was driving erratically, a State trooper saw

a vehicle matching the caller's description in the drive-thru

lane of a McDonald's and spoke with the driver, the defendant.

The defendant had difficulty retrieving his driver's license and

registration, his eyes were bloodshot and glassy, and there was

a "moderate[] / strong" odor of an alcoholic beverage emitting

from the car. After getting out of the car, the defendant's

body swayed from side to side, and the trooper could smell

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alcohol on his breath. The defendant initially stated that he

had consumed two beers, then said four beers. According to the

trooper, the defendant failed a horizontal gaze nystagmus test,

a nine step walk and turn test, and a one leg stand test.

At the conclusion of the field sobriety tests, the trooper

arrested the defendant. During an inventory search of the

vehicle, the trooper found a plastic cup containing what

appeared to be a mixture of cranberry juice. The trooper tested

the mixture using a portable device and determined that it

contained alcohol. There were fresh yellow rub marks on the

car's front bumper that matched a yellow safety pole at the

McDonald's with rub marks on it. Another trooper determined

that the marks on the bumper were fresh by blowing air on the

rub marks and seeing the yellow paint fall off.

After the defendant was arrested, he consented to taking a

breathalyzer test, which showed that he had a blood alcohol

content of 0.15 percent. This result was nearly double the

percentage the Commonwealth would have had to prove (i.e., a

blood alcohol content of 0.08 percent) if it proceeded on a "per

se" theory at trial. See G. L. c. 90, § 24 (1) (a) (1).

Five weeks after his arrest, the defendant admitted to

facts sufficient for a finding of guilty to the OUI charge, and

the plea judge accepted the plea disposition. As part of the

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plea disposition, the defendant was found not responsible for

the two civil infractions.

On November 20, 2023, the defendant moved to withdraw his

plea and for an order vacating his conviction. A hearing on the

motion before a second District Court judge was scheduled for

February 1, 2024. Counsel for the defendant and the

Commonwealth appeared on that date, but no argument or evidence

was heard, apparently because the Commonwealth had not located

its file. The hearing was continued until February 16, and the

judge allowed the Commonwealth to "present any opposition" prior

to that date. The Commonwealth filed a memorandum in opposition

on February 14. The judge then denied the defendant's motion in

a written order without holding another hearing. Objecting to

the judge's failure to hold an evidentiary hearing or make

findings of fact, the defendant moved for reconsideration, which

the judge denied.

Discussion. "We review a judge's decision on a motion to

withdraw a guilty plea and vacate convictions 'to determine

whether the judge committed an abuse of . . . discretion or a

significant error of law,' accepting 'the judge's findings of

fact if supported by the evidence.'" Commonwealth v. Al Kenani,

100 Mass. App. Ct. 288, 291 (2021), quoting Commonwealth v.

DeJesus, 468 Mass. 174, 178 (2014).

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To withdraw a guilty plea, "the defendant first must show

that egregious government misconduct preceded the entry of his

guilty plea and that it is the sort of conduct that implicates

the defendant's due process rights." Commonwealth v. Scott, 467

Mass. 336, 347 (2014), citing Ferrara v. United States, 456 F.3d

278, 290-291 (1st Cir. 2006). Where, as here, the defendant

pleaded guilty and the evidence against him included

breathalyzer test results from an Alcotest 9510 breathalyzer

last calibrated and certified prior to April 18, 2019, he is

"entitled to a conclusive presumption of egregious government

misconduct." Commonwealth v. Hallinan, 491 Mass. 730, 731

(2023).

In addition, the defendant must show that "the misconduct

influenced [the defendant's] decision to plead guilty or, put

another way, that it was material to that choice." Hallinan,

491 Mass. at 744-745, quoting Scott, 467 Mass. at 346; Ferrara,

456 F.3d at 290. This second prong of the test requires an

examination of the totality of the circumstances, guided by 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

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particular plea offer, and (5) whether the value of the
evidence was outweighed by the benefits of entering into
the plea agreement."

Hallinan, supra at 750, quoting Scott, supra at 355 (hereinafter

the Scott-Ferrara factors). The judge in this case did not

address the Scott-Ferrara factors in her order denying the

defendant's motion to withdraw his plea. The judge stated only

that she did not "find that the defendant has demonstrated a

reasonable probability that but for the 'government misconduct'

he asserts in his affidavit, . . . he would not have admitted to

sufficient facts and would have insisted on going to trial."

We conclude that it was an abuse of discretion to deny the

defendant's motion without a hearing and without addressing the

Scott-Ferrara factors. In his motion to withdraw his plea, the

defendant claimed that his "decision to enter the plea was based

in part on the results of the [breathalyzer] test which he

believed would be impossible to overcome at trial." That claim

was supported by the fact that the defendant's breathalyzer test

result was nearly double the level of blood alcohol content

needed to establish his guilt under the "per se" theory of

proof. In his supporting affidavit, the defendant asserted that

he was entitled to a new trial based on Hallinan and "the

inaccuracy of the breath test results" and that he "would not

have plead[ed] to sufficient facts" to the OUI charge "except

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for these test results." See Scott, 467 Mass. at 356 (defendant

must "aver" that "he would not have pleaded guilty and would

have insisted on going to trial"). After the judge denied his

motion, the defendant pointed out in his motion for

reconsideration that an evidentiary hearing had been scheduled,

then canceled, and asked the judge to reschedule the hearing so

that he could "present testimony concerning the circumstances

surrounding the plea" and prove that he "would not have tendered

the plea but for the government's misconduct."

Under these circumstances, the judge should have held a

hearing to allow the defendant to respond to the assertions in

the Commonwealth's opposition, resolved any disputed issues of

facts, and made findings assessing the defendant's claim under

the Scott-Ferrara factors. See Mass. R. Crim. P. 30 (b) ("Upon

the motion the trial judge shall make such findings of fact as

are necessary to resolve the defendant's allegations of error of

law"). In particular, the judge needed to explain how this case

was similar to or distinct from the facts in Hallinan. In that

case, the Supreme Judicial Court held that the defendant should

be permitted to withdraw her admission to sufficient facts to

support a finding of guilty to OUI, second offense. See

Hallinan, 491 Mass. at 731, 750-751. The court concluded that

"the disposition that the defendant received was not so

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favorable that the benefits of the plea outweighed the value of

the evidence." Id. at 751. It reached this conclusion

notwithstanding substantial evidence of the defendant's

impairment, including red and glassy eyes, odor of alcohol,

slurred speech, inability to complete field sobriety tests, a

"dazed" appearance, and the defendant's admission that she had

three alcoholic drinks. Id. at 732. It is true that the

defendant in Hallinan submitted a strong affidavit from plea

counsel, see id. at 750-751, whereas the defendant here did not,

but that issue is not dispositive given that the defendant

entered his plea twelve years earlier and the availability of

relief under Hallinan does not hinge on the quality of lawyering

that the defendant received. Instead, Hallinan requires a

thorough examination of the totality of the circumstances,

guided by the Scott-Ferrara factors, to determine whether there

is a reasonable probability that the defendant would not have

admitted to sufficient facts had he known that the breathalyzer

test result could not be used against him at trial.

Conclusion. We vacate the order denying the defendant's

motion to withdraw his plea and for a new trial, and remand for

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further proceedings consistent with this memorandum and order.

So ordered.

By the Court (Henry, Smyth &
Toone, JJ.1),

Clerk

Entered: April 2, 2025.

1 The panelists are listed in order of seniority.

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