Commonwealth v. Vernon J. Cook, Jr.

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-370

COMMONWEALTH

vs.

VERNON J. COOK, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Vernon J. Cook, Jr., appeals from an order

denying his motion for a new trial, in which he sought to

withdraw his guilty plea to a charge of operating a motor

vehicle under the influence of alcohol (OUI), in violation of

G. L. c. 90, § 24 (1) (a) (1). We affirm.

Background. In 2017, the defendant was charged in the

District Court with OUI after crashing into a guardrail on Route

9. In April 2018 he tendered a guilty plea, which the judge

accepted. He was sentenced to one year of probation, completion

of a drug and alcohol education program, $600 in fines, and a

forty-five-day loss of his driver's license. See G. L. c. 90,

§ 24D.
Almost three and one-half years after pleading guilty, in

September 2021, the defendant filed a motion for new trial under

Commonwealth v. Hallinan, 491 Mass. 730 (2023), seeking to

withdraw his plea. He alleged that, due to anticipated

hardships, he "would have pursued trial had there been no breath

test evidence." After an evidentiary hearing before the same

judge who accepted the plea, the motion was denied. The

defendant timely appealed.

Discussion. Under Mass. R. Crim. P. 30 (b), as appearing

in 435 Mass. 1501 (2001), a judge may grant a motion for new

trial "if it appears that justice may not have been done." "A

motion for a new trial pursuant to Mass. R. Crim. P. 30 (b) is

the proper vehicle by which to seek to vacate a guilty plea."

Commonwealth v. Scott, 467 Mass. 336, 344 (2014). "Judges are

to apply the standard set forth in rule 30 (b) rigorously and

should only grant such a motion if the defendant comes forward

with a credible reason which outweighs the risk of prejudice to

the Commonwealth." Commonwealth v. Wheeler, 52 Mass. App. Ct.

631, 635-636 (2001). See Commonwealth v. DeMarco, 387 Mass.

481, 485-487 (1982). "A strong policy of finality limits the

grant of new trial motions to exceptional situations, and such

motions should not be allowed lightly." Commonwealth v. Gordon,

82 Mass. App. Ct. 389, 394 (2012). We review a judge's denial

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of a motion for a new trial for abuse of discretion or

significant error of law. See Hallinan, 491 Mass. at 744.

Particular deference is given to the rulings of a motion judge

where, as here, the judge served as the plea judge in the same

case. See Scott, supra.

Because the defendant pleaded guilty and the evidence

against him included test results from an Alcotest 9510

breathalyzer last calibrated before April 18, 2019, he is

"entitled to a conclusive presumption of egregious government

misconduct." Hallinan, 491 Mass. at 731. To succeed on his

motion to withdraw his guilty plea, the defendant was required

to demonstrate "a reasonable probability" that he would not have

entered a guilty plea had he known that the breath test was

inadmissible. See id. at 750; Scott, 467 Mass. at 355. "For

purposes of this standard, a reasonable probability is a

probability sufficient to undermine confidence in a belief that

the petitioner would have entered a plea." Ferrara v. United

States, 456 F.3d 278, 294 (1st Cir. 2006). Factors used to

determine if such a reasonable probability exists include the

following:

"(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

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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."

Hallinan, supra at 750, quoting Scott, 467 Mass. at 355. The

judge may also consider "whether the defendant had a substantial

ground of defense that would have been pursued at trial or

whether any other special circumstances were present on which

the defendant may have placed particular emphasis in deciding

whether to accept the government's offer of a plea agreement."

Scott, supra at 356.

1. Reasonable probability analysis. We discern no error

of law or abuse of discretion in the motion judge's

determination, considering the totality of the circumstances,

see Hallinan, 491 Mass. at 750, that the defendant failed to

make a credible showing that he would not have pleaded guilty if

he had known that the breathalyzer results would be inadmissible

at trial. The breathalyzer test, which reported a blood alcohol

content (BAC) of slightly over 0.12, was not the "crown jewel"

of the Commonwealth's proof. Contrast Hallinan, 491 Mass. at

750 (reported BAC of 0.23 "was the 'crown jewel' -- the most

inculpatory piece of evidence against the defendant"). The

other evidence that the defendant operated his motor vehicle

under the influence of alcohol was compelling. As a result of

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his crashing into the guardrail, approximately ten posts "and

the respective panels of the guardrail" were "completely

destroyed," causing "heavy front-end damage" to the defendant's

car. Before the State police arrived, the defendant threw a

liquor bottle into the nearby woods. The responding trooper

recovered a nearly empty bottle of rum and two plastic cups, wet

with alcohol, from the adjacent woods. The defendant admitted

he had been drinking, and his passenger corroborated his

statement.1 He exhibited the classic signs of intoxication --

bloodshot and glassy eyes, slurred speech, strong odor of

alcohol, and being unsteady on his feet. See Commonwealth v.

Stathopoulos, 401 Mass. 453, 454 (1988). He failed several

field sobriety tests and was "argumentative and combative." We

agree with the judge's conclusion that the evidence against the

defendant, even without the breath test results, was

"overwhelming," and that the "likelihood of success at trial for

the Commonwealth was high."

As to whether suppression of the breath test results "would

have influenced counsel's recommendation as to whether to accept

a particular plea offer," Hallinan, 491 Mass. at 750, the

The defendant told the trooper that he had consumed "one
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shot of gin approximately an hour prior to the crash." The
passenger stated that she had started drinking at 7 A.M., and
when asked how long the defendant had been drinking stated, "not
as long as me."

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defendant did not submit an affidavit from plea counsel in

support of his motion. See Commonwealth v. Goodreau, 442 Mass.

341, 354 (2004) ("When weighing the adequacy of the materials

submitted in support of a motion for a new trial, the judge may

take into account the suspicious failure to provide pertinent

information from an expected and available source"). The judge

was "entitled to draw a negative inference from the defendant's

failure to secure an affidavit," Commonwealth v. Martinez, 86

Mass. App. Ct. 545, 550 (2014), and from his failure to explain

the absence of such an affidavit. See Commonwealth v. Thurston,

53 Mass. App. Ct. 548, 553-554 (2002). See also Commonwealth v.

Lys, 481 Mass. 1, 6 (2018) (motion judge allowed to "infer that

the absence of an affidavit from prior counsel makes the

statements in the defendant's affidavit less likely to be

true").

Notwithstanding the likelihood of a conviction even without

the breathalyzer results, we must consider whether the

Commonwealth's inability to introduce those results at trial

affected the defendant's calculus as to the benefits of his

guilty plea versus going to trial. Among the reasons the

defendant listed for wanting to go to trial were that he "was

not guilty, and wanted an opportunity to tell [his] side of the

story" and that he "wanted to be heard." The judge could

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reasonably have disregarded these reasons, as the defendant

would have had the same incentives with or without the

breathalyzer evidence. He claimed that he "would also have

demanded a trial because [he] knew that any plea would have a

negative impact on [his] life." Again, given his knowledge at

the time that the guilty plea would be detrimental, the

defendant offered no explanation as to why he pleaded guilty

anyway.

The defendant also claimed that because of his special

circumstances -- his inability to find a job without a driver's

license and his desire to reconnect with his estranged children

-- the forty-five-day suspension of his license caused him

particular hardship, and he "had a strong incentive to go to

trial in the hopes of avoiding these problems." But had the

defendant chosen to proceed to trial, he faced a loss of license

for a full year, see G. L. c. 90, § 24, (1) (c) (1), a potential

fine of up to $5,000, and a sentence of up to two and one-half

years in prison. G. L. c. 90, § 24 (1) (a) (1). While the

defendant avers that he was unlikely to face such harsh

consequences given that this was his first OUI offense, in the

plea bargaining context, "the defendant's fond hopes for

acquittal must be tempered by his understanding of the strength

of the case against him, his prior record, and the completely

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unknowable reaction of the trier of fact" (emphasis added).2

Commonwealth v. Tirrell, 382 Mass. 502, 510 (1981). In light of

the fact that the defendant received a favorable plea deal that

allowed him to avoid incarceration, and that a loss of license

was inevitable in almost any event, it was well within the

judge's discretion to conclude that the defendant would have

opted for the plea offer rather than risk facing greater

penalties at trial.

The defendant relies heavily on Commonwealth v. Lavrinenko,

473 Mass. 42 (2015), in support of his special circumstances

argument. In Lavrinenko, the defendant, who had been admitted

into the United States as a refugee from religious persecution

in Russia, pleaded guilty to a charge of assault by means of a

dangerous weapon without being advised by counsel how his guilty

plea would affect his immigration status. See id. at 43, 46-51.

The court held that the defendant's refugee status, by itself,

was a special circumstance because, "[f]or a noncitizen

defendant, preserving his [or her] right to remain in the United

States may be more important to [him or her] than any jail

sentence" considering the persecution the defendant may face if

deported (quotation and citation omitted). Id. at 58. The

2 The defendant's probation record submitted to the court
dated back three decades and included numerous charges for
violent crimes.

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defendant's calculus pales in comparison. The special

circumstances the defendant alleged are typical of all OUI

prosecutions and are not the type of "dire" consequences

contemplated by Lavrinenko and similar cases. See Lavrinenko,

473 Mass. at 55-56. See also Lys, 481 Mass. at 8-9 (discussing

how immigration consequences could qualify as special

circumstances).

Moreover, unlike the defendant in Lavrinenko, the defendant

here was fully aware that his guilty plea involved a loss of his

driving privileges. According to the defendant's affidavit, he

"knew that [his] license would be suspended as a result of [his]

plea," he "knew that any plea would have a negative impact on

[his] life," and he "anticipated that when the period of [his]

license suspension expired, [he] would still be unable to afford

any license reinstatement fee." Nonetheless, he pleaded guilty.

Like the judge, we discern no reasonable probability that the

defendant would have risked similar consequences, only more

severe, by rejecting the plea offer and going to trial. See

Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 729 (2012)

(defendant's special circumstances not type that "might warrant

a rational willingness to 'roll the dice' and opt for trial,

rather than to accept a plea bargain"). The defendant's showing

did not undermine confidence that he still would have pleaded

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guilty, and not opted to go to trial, even if he had known that

the breath test was inadmissible.

2. Procedural issues. The defendant also argues that the

judge erred by preventing him from testifying about his special

circumstances at the evidentiary hearing, and that he is

entitled to a new hearing to present additional evidence of

special circumstances. We disagree.

The judge did not err by cutting off counsel's questioning

about the adverse effects that ensued after the defendant

pleaded guilty. Whether the defendant would have chosen to

proceed to trial takes into consideration the facts and

circumstances known to the defendant at the time of the guilty

plea, not those that occurred after the fact. See Scott, 467

Mass. at 357. "[D]issatisfaction with a sentence is never a

sufficient reason to grant a defendant's postsentence motion to

withdraw his plea." DeMarco, 387 Mass. at 483 n.5.

To the extent the judge's written decision suggested that

the defendant's hardships from his loss of license were

"inapplicable to the legal analysis," she may have overstated

the case. The fact remains, however, that the defendant's

motion for a new trial and supporting affidavit detailed those

hardships. Counsel's offer of proof added nothing to the facts

already before the judge. The defendant does not argue that he

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intended to present additional special circumstances to the

judge, nor does he explain how additional testimony would have

furthered the judge's understanding of his circumstances. It

was within the judge's discretion to limit the defendant's

testimony after determining that it would be irrelevant or

cumulative. See Goodreau, 442 Mass. at 348-349 ("If the theory

of the motion, as presented by the papers, is not credible or

not persuasive, holding an evidentiary hearing to have the

witnesses repeat the same evidence . . . will accomplish

nothing"); Mass. G. Evid. § 403 (2025).

Order denying motion for new
trial affirmed.

By the Court (Massing, Hand &
Hershfang, JJ.3),

Clerk

Entered: August 12, 2025.

3 The panelists are listed in order of seniority.

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