Commonwealth v. Patrick R. Vincent.

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-1467

COMMONWEALTH

vs.

PATRICK R. VINCENT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in the District Court, the

defendant, Patrick Vincent, was convicted of operating a motor

vehicle under the influence of liquor (OUI), third offense, in

violation of G. L. c. 90, § 24 (1) (a) (1). On appeal, the

defendant argues (1) that the evidence was insufficient to

charge and convict him of the underlying offense, and (2) that

the subsequent offender conviction should be vacated because the

judge conducted an inadequate plea colloquy. We affirm the

conviction of OUI and vacate the guilty finding on the

subsequent offense portion of the charge.

Background. 1. Underlying offense. Because the defendant

challenges the sufficiency of the evidence, we summarize the
facts in the light most favorable to the Commonwealth, reserving

some details for our discussion of the sufficiency of the

evidence. Commonwealth v. Lopez, 484 Mass. 211, 211 (2020). At

approximately 8:00 P.M. on February 6, 2021, the defendant was

driving a pickup truck on Brook Lane, a street located in the

Mountain Grove Association (Mountain Grove) in Becket, when the

truck skidded off the road, hit a fence, and became stuck in a

snowbank near his home. A witness saw the defendant's truck

come around a corner at a "higher than normal rate of speed,"

before it went off the road.

A police officer arrived and observed the defendant's truck

stuck in the snowbank, partially blocking the roadway. The

officer looked inside the truck and saw an "empty little bottle

of Fireball Whisky" on the passenger's side floor, and "a

Twisted Tea and a Truly" on the rear floorboard. After briefly

speaking to the neighbor and visitor, the officer walked to the

defendant's home, where he saw the defendant sitting in his

kitchen next to the front door. No one else was present at the

defendant's residence. The officer asked the defendant why his

truck was partially blocking the road, to which the defendant

responded that "that corner gives me trouble" and that "his son

was going to come and tow it out." When the officer asked where

he was driving from, the defendant replied that he was returning

from grocery shopping in Lee. The officer testified that the

2
defendant "appeared intoxicated" -- the defendant's pants' fly

was unzipped, he was slurring his words, he had "bloodshot and

glossy" eyes, and the officer smelled a "heavy" odor of alcohol

while the defendant spoke. The defendant stated that he had

consumed "a couple beers." At that point, the officer asked the

defendant to perform the one-leg stand test and he was

instructed to stand on one leg for thirty seconds. The

defendant could not perform the test satisfactorily, and after

putting his foot down, said to the officer, "just take me in."1

The officer gave the defendant an additional opportunity to

perform the test but he was only able to lift his foot very

briefly at which point the defendant stated, "I'm not doing it."

The officer placed the defendant under arrest.

1 The defendant argues that his statements during the field
sobriety tests constituted inadmissible refusal evidence under
art. 12 of the Massachusetts Declaration of Rights. Because the
defendant did not object to the testimony at trial, we review
for error and, if established, determine whether the error
created a substantial risk of a miscarriage of justice such that
"we have a serious doubt whether the result of the trial might
have been different had the error not been made [quotation
omitted]." Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016).
Here, where the defendant made the statements during an attempt
and failure to complete the field sobriety tests, we perceive
his statements as expressions of his inability to complete the
tests, rather than expressions of unwillingness. We therefore
conclude that the judge did not err in admitting the testimony.
See Commonwealth v. Brown, 83 Mass. App. Ct. 772, 772-773
(2013).

3
The Commonwealth presented evidence related to the

characteristics of, and the public's access to, Brook Lane. To

reach Brook Lane, one must travel on Route 8 in Becket into

Mountain Grove. There are six points of entry from Route 8 to

Mountain Grove, none of which are gated. Additionally, Brook

Lane and the surrounding roads in Mountain Grove contain

telephone poles, speed-limit signs, signs cautioning drivers of

the presence of children, and a sign indicating where different

members of the association live.

Brook Lane is maintained by the Mountain Grove Association,

a nonprofit association of residents of Brook Lane and its

surrounding roads. Members pay annual fees for trash services

and beach rights. Members of the public can also pay an annual

fee to use the Mountain Grove clubhouse. There is a single no

trespassing sign in Mountain Grove located near the parking lot

to the club. The defendant's neighbor testified that despite

having lived on Brook Lane for thirty years, she was not aware

of any "no trespass" or "private property" signs located on

Brook Lane. Similarly, the officer testified that, despite

awareness of the no trespassing sign, he would not arrest a

nonresident for driving within the association.

At the close of the Commonwealth's evidence, the defendant

moved for a required finding of not guilty, arguing that Brook

Lane was not a public way. The motion was denied. The

4
defendant rested without calling any witnesses or presenting any

evidence. The judge concluded that there was sufficient

evidence to prove the essential elements of the crime charged,

including that the defendant operated his vehicle on a public

way prior to entering Mountain Grove, and the defendant was

convicted of OUI.2

2. Subsequent offender proceeding. Following the judge's

verdict, the defendant moved for a separate trial on the

subsequent offender portion of the complaint. After consulting

his client, defense counsel stated to the judge that the

defendant "just [wanted to] be under sentence." Defense counsel

further stated that he

2 The defendant moved to dismiss the complaint, arguing that
the police report attached to the complaint application failed
to establish probable cause that the defendant operated the
vehicle on a public way. After a hearing, the clerk-magistrate
denied the defendant's motion. The defendant asserts that the
clerk-magistrate erred in denying the defendant's motion to
dismiss, arguing that the application was insufficient to show
probable cause that the offense occurred on a public way. After
reviewing the application in the light most favorable to the
Commonwealth, and drawing all reasonable inferences in the
Commonwealth's favor, we conclude that the complaint contained
"reasonably trustworthy information sufficient to warrant a
reasonable or prudent person in believing that the defendant has
committed the offense [quotation omitted]." Commonwealth v.
Humberto H., 466 Mass. 562, 565 (2013). See Commonwealth v.
Geordi G., 94 Mass. App. Ct. 82, 85 (2018). The police report,
attached to the complaint, contains the defendant's statement
that he had traveled from Lee to Brook Lane, and thus there was
sufficient circumstantial evidence to find probable cause that
the defendant operated the vehicle on a public way. See
Humberto H., supra at 566.

5
"underst[ood] that [the defendant] would have to basically
admit he was the same person convicted of two prior
offenses. . . . I don't think that's going to be an
issue . . . [i]t deals with . . . the jury waiver and all
that other stuff. But if we could go unagreed as to
sentencing, I think that we're prepared to just try to move
forward today."

The judge then asked the defendant the following: whether the

defendant understood (1) that he was entitled to a separate

trial on the subsequent offense, (2) that if he elected a jury

trial, the jury would have to be unanimous in their verdict and

would have to find that he was the same person who committed two

prior offenses for operation under the influence, and (3) that

the defendant was, in fact, waiving his right to a jury trial

freely and voluntarily. The defendant answered "yes" to all of

the questions.

The judge then asked to "hear" some evidence from the

Commonwealth regarding whether the underlying conviction was the

defendant's third conviction. The Commonwealth handed the judge

certified copies of two convictions and the defendant's Registry

of Motor Vehicles (RMV) records without objection by the

defendant, to which the judge stated, "[w]e'll take them and put

them in the file." The judge then immediately asked for the

parties' recommendations for sentencing. The judge stated that

he found "sufficient factual basis" for the allegation that the

underlying conviction was the defendant's third offense and

adopted the defendant's sentencing recommendation.

6
Discussion. 1. Standard of review. "[W]e consider the

evidence introduced at trial in the light most favorable to the

Commonwealth, and determine whether a rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547

(2017). "The inferences that support a conviction 'need only be

reasonable and possible; [they] need not be necessary or

inescapable.'" Commonwealth v. Waller, 90 Mass. App. Ct. 295,

303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713

(2014). To sustain a conviction for OUI, the Commonwealth must

prove that the defendant (1) operated a motor vehicle, (2) on a

public way, (3) while impaired by the influence of intoxicating

liquor. Commonwealth v. AdonSoto, 475 Mass. 497, 509 (2016).

Because, on appeal, the defendant does not challenge the

evidence that he was impaired or that he operated a motor

vehicle, we address only the element that the offense occurred

on a public way.

2. Sufficiency of public way evidence. To satisfy the

public way element, the Commonwealth must prove that the offense

took place "upon any way or in any place to which the public has

a right of access, or upon any way or in any place to which

members of the public have access as invitees or licensees."

G. L. c. 90, § 24 (1) (a) (1). In determining whether a way

meets the definition of a public way, the question is whether

7
"members of the public may reasonably conclude that it is open

for travel to invitees or licensees [quotation omitted]."

Commonwealth v. Wurtzberger, 104 Mass. App. Ct. 558, 564 (2024),

S.C., 496 Mass. 203 (2025). "We look to the characteristics of

the way to determine if there is sufficient 'indicia of

accessibility to the public' by motor vehicle." Id., quoting

Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 832-833

(2010). "Indicia that the way is not accessible to the public

include signage or barriers prohibiting access." Belliveau,

supra at 833.

The defendant argues that, given the Mountain Grove

Association's maintenance and purported control over the

public's access to Brook Lane, there was insufficient evidence

to find that Brook Lane was a public way. We disagree. First,

Brook Lane and its surrounding roads contain several "indicia of

accessibility to the public by motor vehicle," Wurtzberger, 104

Mass. App. Ct. at 564 (quotation omitted), including speed-limit

signs, "careful of children" signs, and a sign informing in

which direction residents in the neighborhood live. See

Belliveau, 76 Mass. App. Ct. at 832-833. Second, although there

was a single "no-trespassing" sign affixed near the

association's clubhouse, both the neighbor's and officer's

testimony suggest that members of the public would reasonably

believe they have access to Brook Lane. See Wurtzberger, supra.

8
See also Commonwealth v. Kiss, 59 Mass. App. Ct. 247, 249-250

(2003) ("[i]t is the objective appearance of the way that is

determinative of its status, rather than the subjective intent

of the property owner"). Moreover, the association permits the

public to pay a fee and visit the association clubhouse. Thus,

we conclude that, in the light most favorable to the

Commonwealth, there was sufficient evidence for the judge to

find that Brook Lane was a public way.

In any event, there was also sufficient evidence that

Route 8 constitutes a public way, and that the defendant

traveled thereon. As noted above, Brook Lane is only accessible

by traveling on Route 8. The Commonwealth introduced photos

that showed Route 8 to be paved and lined with streetlights,

street signs, and telephone poles -- all "indicia of

accessibility to the public by motor vehicle." Wurtzberger, 104

Mass. App. Ct. at 564 (quotation omitted). See Belliveau, 76

Mass. App. Ct. at 832-833. Furthermore, the defendant's

statement to the officer that he had been grocery shopping in

Lee leads to the reasonable inference that the defendant

operated his truck on Route 8 before becoming stuck in the

snowbank. It was therefore reasonable for the judge to

conclude, as he did, that Route 8 was a public way, and that the

defendant had been impaired while driving on it. Accordingly,

we affirm the conviction as to OUI.

9
3. Plea colloquy. Mass. R. Crim. P. 12 (c) (3) (A) (i),

as amended, 489 Mass. 1501 (2022), states that, upon a

defendant's guilty plea, the judge shall inform the defendant

that, among other things, they are waiving "the right to trial

with or without a jury, the right to confrontation of witnesses,

the right to be presumed innocent until proved guilty beyond a

reasonable doubt, and the privilege against self-incrimination."

On appeal, the defendant asserts that defense counsel's

statement that the defendant wanted "to just be under sentence"

constituted acquiescence to taking a guilty plea, but that the

judge's subsequent questioning of the defendant was an

inadequate plea colloquy. The defendant therefore contends that

the finding as to the portion of the complaint alleging

subsequent offenses should be vacated.3

Given the atypical course of the proceedings after the

judge found the defendant guilty of the underlying offense, we

must first determine whether the proceedings constituted a

guilty plea, or, as posited by the Commonwealth, a separate

3 We note that, under ordinary circumstances, the
appropriate avenue to challenge the adequacy of a plea -- that
is, whether the plea was voluntary, knowing, and made with
sufficient awareness of the relevant circumstances and with the
advice of competent counsel, see Brady v. United States, 397
U.S. 742, 748, 758 (1970); Commonwealth v. Roberts, 472 Mass.
355, 362 (2015) -- is through a motion to withdraw a guilty plea
or a motion for new trial filed in the trial court.

10
trial. Here, following defense counsel's statement that the

defendant wanted "to just be under sentence," the judge asked

the defendant whether he understood that he had a right to a

trial regarding the subsequent offense charges, and, thereafter,

whether he was waiving this right. The Commonwealth offered

certified copies of the defendant's RMV records as anticipated

evidence as to the defendant's prior convictions. The judge

then, without giving the defendant an opportunity to present

evidence, call witnesses, or present a closing argument, heard

arguments from both parties regarding sentencing

recommendations, before stating that he found "sufficient

factual basis" for the allegation that the underlying conviction

was the defendant's third offense. Based on the record, and the

lack of indicia of a trial, we conclude that a trial did not

occur. Rather, as supported by the trial court docket entry on

September 20, 2021, which states that the defendant was

"[waiving] his rights to trial for proving [two] prior

convictions," we conclude that the defendant pleaded guilty to

the subsequent offenses portion of the complaint. See

Commonwealth v. MacDonald, 435 Mass. 1005, 1007 (2001) ("Docket

entries are prima facie evidence of the facts recorded

therein").

11
Having determined that the proceedings constituted a guilty

plea, we also conclude, and the Commonwealth concedes,4 that the

judge conducted an inadequate plea colloquy. As noted above,

Mass. R. Crim. P. 12 (c) (3) (A) (i), requires a judge taking a

plea from a defendant to inform the defendant of certain rights,

including that they are waiving the right to confrontation of

witnesses, the right to be presumed innocent until proved guilty

beyond a reasonable doubt, and the privilege against self-

incrimination. Commonwealth v. Petersen, 67 Mass. App. Ct. 49,

55 (2006) (failure to conduct plea colloquy despite defense

counsel's stipulation to prior offense was error).

Here, the judge did not inform the defendant that he was

waiving those rights and, thus, the plea colloquy was deficient.

In addition, the judge did not ask the defendant whether the

facts, as stated by the prosecutor, were true. In other words,

the defendant never admitted that he was guilty of the

subsequent offender portion of the offense.

We therefore vacate the subsequent offense portion of the

conviction. So much of the judgment as found the defendant

guilty of the underlying offense of operating a motor vehicle

while under the influence of liquor shall stand. The

Commonwealth may, at its discretion, pursue such further

4 The panel notes and appreciates the Commonwealth's candor.

12
proceedings with respect to the subsequent offense portion of

the charge as are consistent with this memorandum and order.

So ordered.

By the Court (Neyman,
D'Angelo & Allen, JJ.5),

Clerk

Entered: January 16, 2026.

5 The panelists are listed in order of seniority.

13