Commonwealth v. Andre Echevarria.

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

22-P-700

COMMONWEALTH

vs.

ANDRE ECHEVARRIA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the denial of his motion to

withdraw his guilty plea by a judge of the Suffolk Superior

Court (motion judge). The defendant was indicted on charges of

carrying a firearm without a license, third offense (count one);

possession of a firearm without a license (count two); and

carrying a loaded firearm without a license (count three).

With regard to count one, the defendant was also charged with

being an armed career criminal on the basis that he had

previously been convicted of two violent crimes and a serious

drug offense. See G. L. c. 269, § 10G. A jury was empaneled on

January 21, 2014, and trial was scheduled to continue on January

23. However, on January 23, following plea negotiations, the

defendant participated in a plea colloquy and pleaded guilty to

so much of count one as alleged carrying a firearm without a
license, second offense, and being a level one armed career

criminal, and count three. Count two was dismissed at the

request of the Commonwealth, as were the remaining portions of

count one. The defendant received the jointly recommended

sentence of from six to seven years in State prison on count one

and three years of probation on count three, to commence from

and after the sentence imposed on count one. Seven years later,

on October 25, 2021, the defendant filed a motion to withdraw

his guilty plea, arguing, inter alia, that that he was pressured

to complete the plea colloquy under the threat of having to

begin trial.1 That motion was treated as a motion for a new

trial and denied without a hearing. See Commonwealth v.

Resende, 475 Mass. 1, 12 (2016). On appeal, the defendant

argues that his motion for a new trial should have been granted

because his guilty plea was coerced as a result of the plea

judge's statement that his case would proceed to trial if he

could not confirm that he had received effective representation

from his counsel. We affirm.

Discussion. "A motion to withdraw a guilty plea is treated

as a motion for a new trial pursuant to Mass. R. Crim. P. 30

1 The defendant also argued that one of the underlying
convictions supporting the armed career criminal enhancement had
been subsequently vacated, after which a nolle prosequi was
entered with respect to that charge. However, he has not
renewed that argument here.

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(b)." Resende, 475 Mass. at 12. "[A] judge should only grant a

postsentence motion to withdraw a plea if the defendant comes

forward with a credible reason which outweighs the risk of

prejudice to the Commonwealth." Commonwealth v. DeMarco, 387

Mass. 481, 486 (1982).

"For a guilty plea to be valid, it must be made voluntarily

and intelligently." Commonwealth v. Hart, 467 Mass. 322, 325

(2014), citing Huot v. Commonwealth, 363 Mass. 91, 99 (1973).

"To assess the intelligence and voluntariness of a defendant's

plea, we necessarily rely on the defendant's sworn responses to

the judge's informed questions made in the solemnity of a formal

plea proceeding." Commonwealth v. Hiskin, 68 Mass. App. Ct.

633, 638 (2007). "While not solely determinative of the

intelligence and voluntariness of a plea, the defendant's sworn

statements at colloquy have undeniable bearing and heft in

resolving a later claim to the contrary." Id. at 639, citing

Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 635–636 (2001).

"While '[t]he question whether a defendant was subject to

undue pressure to plead guilty must be considered in some manner

on the record . . . [n]o particular form of words need be used

in the required inquiry of a defendant.'" Commonwealth v.

Sherman, 451 Mass. 332, 338 (2008), quoting Commonwealth v.

Quinones, 414 Mass. 423, 434 (1993). "Any defendant who pleads

guilty does so under the weight of an assortment of pressures

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that are intrinsic to such a situation." Commonwealth v.

Bolduc, 375 Mass. 530, 536 (1978). "The recognition of these

pressures on the defendant is not enough, however, to render the

plea involuntary in a constitutional sense." Id.

An appellate court "review[s] the allowance or denial of a

motion to withdraw a guilty plea to determine whether the judge

abused that discretion or committed a significant error of law."

Commonwealth v. Henry, 488 Mass. 484, 490 (2021), quoting

Commonwealth v. Camacho, 483 Mass. 645, 648 (2019). The

decision to deny such a motion lies within the sound discretion

of the judge and will be reversed only if it appears manifestly

unjust or where the proceeding was infected with prejudicial

constitutional error. See Commonwealth v. Williams, 71 Mass.

App. Ct. 348, 353 (2008), quoting Commonwealth v. Berrios, 447

Mass. 701, 708 (2006).

Here, we discern no abuse of discretion on the part of the

motion judge in his denial of the defendant's motion for a new

trial. During the plea colloquy, the plea judge and defendant

discussed the defendant's representation. We recite the

relevant portion of the exchange.

"Q: And do you think that he has fully and fairly
represented you at all time[s] and always acted in your
best interests?
A: No.
Q: You[] do not?
A: No.
Q: Can you explain that to [me], Mr. Echevarria?

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A: I just don't believe he has.
Q: Well, with regard to your change of plea, has he
represented you and counseled you fully and fairly[?]
A: I guess.
Q: You guess? Sir, I can't accept your change of plea to
guilty unless you can tell me that [plea counsel] has been
rendering effective assistance of counsel to you. If
you're not able to say that, then I'm going to proceed with
the trial, sir. You are entitled under the Constitution to
effective assistance of counsel. If you are telling me
that you have not been enjoying effective assistance of
counsel, then I'm going to bring the jury down and we're
going to proceed with the trial.
A: Well, under those circumstances, yeah, of course, he's
been wonderful.
Q: And do you mean that, sir? Am I hearing that you've
had some disagreements with him in the past?
A: Uh-hum.
Q: Is that true?
A: Yes.
Q: But as to this decision to plead guilty today, do you
believe that he has rendered you effective assistance of
counsel?
A: Yes.
Q: Do you believe that he has fully and fairly represented
you with regard to your change of plea today?
A: Uh-huh.
Q: And do you think that he has acted in your best
interest in counseling you whether or not to change your
plea to guilty today?
A: Uh-hum.
Q: Is that a yes?
A: Yes."

That the defendant may have been unhappy with his attorney

is evident. When the defendant expressed that unhappiness by

stating that his counsel had not fully and fairly represented

him at all times, the plea judge properly inquired more deeply

into the meaning of his assertion. See Hiskin, 68 Mass. App.

Ct. at 638–639. When asked to explain himself, he could not

articulate any specific shortcoming in his counsel's

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representation. In response to further inquiry, and before the

plea judge stated anything regarding his impending trial, the

defendant stated that "[he] guess[ed]" he received effective

representation. Although the defendant used language that

continued to express his unhappiness with the proceedings, this

statement was a clear affirmation of the effectiveness of the

representation the defendant received from his plea counsel

prior to any statement by the plea judge regarding the impending

trial. See Sherman, 451 Mass. at 338. See also Hiskin, 68

Mass. App. Ct. at 638–639. The plea judge explained to the

defendant that he is entitled under the Constitution to

effective assistance of counsel, and that, if he had not

received such assistance, he had the option of proceeding to

trial in lieu of pleading guilty. Whatever pressure the

defendant might have felt as a result of his impending trial is

of no issue, as all defendants face the possibility of trial

when determining how to plead. See Bolduc, 375 Mass. at 536.

The plea judge continued to question the defendant regarding his

impression of plea counsel's representation, and on further

clarification, the defendant repeatedly stated clearly that be

believed he had received effective assistance.2 We discern no

2 To support his motion for a new trial, the defendant submitted
an affidavit asserting that he was "unnerved by the Court's
insistence that we would proceed to trial" and so he "panicked
and responded to her questions with answers that would cause her

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abuse of discretion in the motion judge's denial of the motion

for a new trial given these facts. See Williams, 71 Mass. App.

Ct. at 353.

Order dated December 17,
2021, denying motion to
withdraw guilty plea
affirmed.

By the Court (Henry,
Desmond & Englander, JJ.3),

Clerk

Entered: July 5, 2023.

to accept the plea and avoid trial that day." The motion judge,
however, "was free to reject [these assertions] as self-serving
and contradictive of previously sworn professions." Hiskin, 68
Mass. App. Ct. at 640.
3 The panelists are listed in order of seniority.

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