Commonwealth v. David A. Pagan, 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

23-P-64

COMMONWEALTH

vs.

DAVID A. PAGAN, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2016, as part of a guilty plea to multiple charges

arising from the same course of events, the defendant David

Pagan admitted to sufficient facts to warrant a guilty finding

on a charge of operation of a motor vehicle while under the

influence of intoxicating liquor (OUI), and also pleaded guilty

to charges of resisting arrest and threatening to commit a

crime. The Commonwealth nol prossed the remaining charges

against the defendant, including assault and battery on a police

officer. In 2021, the defendant filed a motion to withdraw his

pleas and admission, under Mass. R. Crim. P. 30 (b), as

appearing in 435 Mass. 1501 (2001), claiming that had he known

that the breathalyzer test in his case was inadmissible -- due

to the misconduct of the State police Office of Alcohol Testing

(OAT), see Commonwealth v. Hallinan, 491 Mass. 730, 745-751
(2023) -- he would not have admitted to sufficient facts as to

the charge of OUI or otherwise pleaded guilty. The motion was

denied, and the defendant appeals. We affirm.

1. Background.1 a. Incident. At around 4 A.M. on April

23, 2016, a Palmer police officer was dispatched to a report of

a single vehicle crash. The report was made by the defendant

himself, who stated that an unidentified truck came into his

lane of travel and ran him off the road. When the officer

arrived, the defendant's vehicle was found in the opposite lane

with the engine running. There was significant damage to the

driver's side of the vehicle, the vehicle's bumper was damaged,

and the front passenger's side tire was completely separated

from the vehicle.

The defendant was upset and was pacing back and forth.

When the officer asked the defendant if he needed medical

attention, the defendant became angry and started swearing,

stating, "[D]o I fucking look alright[?] [M]y fucking new car

is destroyed." When the officer shined a flashlight into the

defendant's car, the defendant swore at the officer, yelling,

"[W]hat the fuck are you looking for? . . . I don't fucking

have anything in there[.] [W]hy are you looking in there when

1 No transcript of the admission hearing is available. However,
the facts herein are found in the police report and breath test
report, and are not in dispute between the parties.

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you should be looking for the asshole that ran me off the

road[?]" The defendant "ripped open" the driver's side door,

stating, "[Y]ou want to fucking search it you asshole, I don't

have shit in there." The defendant then went to his trunk,

stating, "[F]uck that shit[.] I'm getting my jack so I can

change my tire," despite the tire being detached from the car

and the axle being broken. Throughout the interaction, a strong

odor of alcohol came from the defendant's breath.

The officer then asked the defendant to perform field

sobriety tests. In response, the defendant clenched his fists,

advanced on the officer and pushed him, asking the officer if he

"was fucking kidding him." When the defendant advanced on the

officer a second time, the officer grabbed the defendant's arms

and, with the assistance of another officer, gained control of

the defendant, who tensed both of his arms and refused to

cooperate with the officer's instructions. Eventually, the

officers were able to handcuff the defendant and move him into a

police cruiser for transport to the police station.

While proceeding to the station, there was a strong odor of

alcohol inside the cruiser. Throughout the transport, the

defendant screamed, kicked the seat, and made several threats

against the responding officer. For example, the defendant

stated that when he "was bailed out," he was going to kill the

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officer, his wife, and his children. The defendant also stated

that he was going to "fuck [the officer's] mother."

The defendant's behavior did not moderate at the police

station. After refusing to sign paperwork related to a breath

test, the defendant stated several times that he wanted to "take

the breath test to prove he wasn't drunk and wanted an apology

when it came back negative." The defendant was then

administered a breath test using a Draeger Alcotest 9510

breathalyzer device. The result of the test was 0.14 percent

blood alcohol content, i.e., above the legal limit. See G. L.

c. 90, § 24 (1) (a) (1). As detailed in the breath test report,

the responding officer noticed that the defendant was unsteady

on his feet, the defendant's speech was slurred, and the

defendant's eyes were glassy and bloodshot.

There was no physical or corroborating evidence to suggest

that the defendant was run off the road by another vehicle.

Only one set of tire marks was seen at the location of the

crash. Other officers responding to the scene shortly after the

crash did not see any vehicles matching the description of the

vehicle that the defendant gave. The responding officer stated

in his report that, based on the tire marks, it seemed that the

defendant was traveling too fast for the road conditions, lost

control of his car, traveled up a hill, hit a telephone pole,

and subsequently came back down the hill into the roadway.

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b. Procedural history. On April 25, 2016, the defendant

was charged in the District Court with OUI, negligent operation

of a motor vehicle, resisting arrest, threatening to commit a

crime, disorderly conduct, and assault and battery on a police

officer. In May 2016, the defendant pleaded guilty to the

charges of resisting arrest and threatening to commit a crime,

and admitted to sufficient facts to warrant a guilty finding on

the charge of OUI. In return, the Commonwealth nol prossed the

remaining charges against the defendant. The defendant did not

then receive any jail time; instead, the OUI charge was

continued without a finding for one year under G. L. c. 90,

§ 24D, the defendant's license was suspended for forty-five

days, and the defendant was sentenced to one year of probation.2

In September of 2021, the defendant moved to "withdraw

[his] plea," under Mass. R. Crim. P. 30 (b), arguing that newly

discovered evidence showed egregious government misconduct by

OAT with respect to the management and handling of the device

used to test his blood alcohol level. The defendant argued that

had he known of such evidence there is a reasonable probability

that he would not have admitted to sufficient facts as to the

OUI charge or pleaded guilty to the other charges, and instead

would have proceeded to trial. After a nonevidentiary hearing,

2 The defendant did receive jail time in 2017 after he violated
probation and a guilty finding entered on the OUI charge.

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on August 18, 2022, the motion judge, who also presided over the

defendant's pleas and admission, denied the defendant's motion.

The defendant appealed the denial. Briefing and argument

in this court were stayed pending resolution in the Supreme

Judicial Court of Hallinan, 491 Mass. 730, which addressed

fundamentally similar issues regarding the conduct of OAT with

respect to the Alcotest device, and the consequences for

criminal proceedings in which certain breathalyzer evidence was

relied on. Hallinan has now been decided, and the court ruled,

among other things, that due to government misconduct regarding

the Draeger Alcotest 9510 breathalyzer device, breathalyzer

evidence obtained from this device prior to April 18, 2019, was

inadmissible, and that any conviction where such evidence was

relied on is subject to being revisited, utilizing the two-

pronged test articulated in Commonwealth v. Scott, 467 Mass.

336, 346 & n.5 (2014), citing Ferrara v. United States, 456 F.3d

278, 290 (1st Cir. 2006) (Scott-Ferrara test). The question

before us is whether the judge was required to grant the

defendant's motion to withdraw his pleas and admission in light

of the court's reasoning in Hallinan, supra at 733-751.

2. Discussion. A motion for a new trial under Mass. R.

Crim. P. 30 (b) is the proper vehicle to challenge the validity

of a plea and an admission to sufficient facts. Hallinan, 491

Mass. at 744. "A motion to vacate an admission to sufficient

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facts is treated as a motion for a new trial." Commonwealth v.

Muniur M., 467 Mass. 1010, 1011 (2014).3 "A judge may grant the

defendant's motion only if it appears that justice may not have

been done" (quotations and citation omitted). Commonwealth v.

Furr, 454 Mass. 101, 106 (2009).

Under the two-pronged Scott-Ferrara test, "[t]o prevail on

a claim that government misconduct induced a defendant to admit

to sufficient facts, the defendant must show both [(1)] that

egregiously impermissible conduct . . . by government agents

. . . antedated the entry of his [or her] plea and [(2)] that

the misconduct influenced his [or her] decision to plead guilty

or, put another way, that it was material to that choice"

(quotations omitted). Hallinan, 491 Mass. at 744-745, quoting

Scott, 467 Mass. at 346. Under the second prong of the Scott-

Ferrara test, the defendant must demonstrate a reasonable

probability that he would not have pleaded guilty had he known

of OAT's misconduct. See Hallinan, supra at 750. When

considering the second prong, the motion judge evaluates whether

it would have been rational to reject the plea deal under the

3 Because an admission to sufficient facts to warrant a finding
of guilty "exposes a defendant to some of the same collateral
consequences as a guilty plea," we treat the admission the same
as a guilty plea for purposes of this discussion. Hallinan, 491
Mass. at 731 n.1.

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totality of the circumstances in the defendant's individual

case.4 See id.; Scott, 467 Mass. at 356.

"We review the denial of a motion to withdraw a guilty plea

to determine whether there has been a significant error of law

or other abuse of discretion" (citation omitted). Commonwealth

v. Lastowski, 478 Mass. 572, 575 (2018). "Particular deference

is to be paid to the rulings of a motion judge who served as the

[plea] judge in the same case" (citation omitted). Commonwealth

v. Sylvester, 476 Mass. 1, 6 (2016).

As noted, the motion judge's decision here predates

Hallinan, but the judge's analysis is not inconsistent with

Hallinan's reasoning. In Hallinan, 491 Mass. at 731, 749-751,

755, the Supreme Judicial Court reversed the denial of a

defendant's motion to withdraw her admission to sufficient facts

of OUI, second offense, after concluding that she satisfied both

prongs of the Scott-Ferrara test. As to the first prong, the

4 To evaluate the second prong of the Scott-Ferrara test, five
factors are to guide the analysis:
"(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."
Hallinan, 491 Mass. at 750, quoting Scott, 467 Mass. at 355.

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Supreme Judicial Court concluded that defendants who pleaded

guilty to OUI based on breath test results from a Draeger

Alcotest 9510 breathalyzer device obtained before April 18,

2019, are entitled to a conclusive presumption "that the first

prong of the Scott-Ferrara test is satisfied, and the existence

of egregious government misconduct that antedated the

defendant's plea has been established." Id. at 755, citing

Scott, 467 Mass. at 346. See Ferrara, 456 F.3d at 290-291.

Such defendants may proceed on motions to withdraw guilty pleas

"without having to establish egregious government misconduct in

each case." Hallinan, supra at 731.

There is no dispute that the defendant here is entitled to

the Hallinan conclusive presumption as to prong one. See

Hallinan, 491 Mass. at 749-750. The question in this appeal,

accordingly, centers on whether the motion judge's denial was

erroneous as to prong two, the prejudice prong. The defendant

points out that the Hallinan court found the prejudice prong

satisfied, but in our view, Hallinan is distinguishable on its

facts.

Hallinan, 491 Mass. at 732, involved a stop at a sobriety

checkpoint. The defendant Hallinan was not involved in an

accident, nor was she seen operating her vehicle erratically.

Id. At the checkpoint troopers noted that Hallinan's eyes were

red and glassy, an odor of "intoxicating liquor" was coming from

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her vehicle, and her speech was slurred. Id. Hallinan "seemed

dazed" and admitted to consuming three alcoholic drinks. Id.

Hallinan performed a series of field sobriety tests but was

unable to complete them successfully. Id. Hallinan was then

administered an Alcotest 9510 breath test, and the results

showed a blood alcohol content of 0.23 percent. Id.

Hallinan subsequently admitted to sufficient facts to

support a finding of guilty of OUI, second offense, the only

charge she faced. Hallinan, 491 Mass. at 732. Following

Hallinan's admission, the matter was continued without a finding

for two years, Hallinan was placed on probation, and her

driver's license was suspended for two years. Id.

Hallinan thereafter moved to withdraw her admission to

sufficient facts, claiming that her admission resulted from

government misconduct related to the breathalyzer device used to

test her blood alcohol content. Hallinan, 491 Mass. at 732-733.

Though the motion judge found that defendant Hallinan satisfied

the second prong of the Scott-Ferrara test, the judge denied the

motion due to Hallinan not showing a nexus between government

misconduct involving the breathalyzer device and her case, the

first prong of the test. Id. at 731-733, 751. Importantly, on

appeal the Supreme Judicial Court found no error in the motion

judge's determination that Hallinan satisfied the prejudice

prong. Id. at 750-751. The court agreed that leaving aside the

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breath test result, "the disposition that [Hallinan] received

was not so favorable that the benefits of the plea outweighed

the value of the [breathalyzer] evidence." Id. at 751.

Applying the Scott-Ferrara test to the facts here, we

discern no abuse of discretion in the motion judge's denial. In

contrast to the court's conclusion in Hallinan, 491 Mass. at

750-751, here the motion judge concluded: (1) that the evidence

against the defendant was "overwhelming" and (2) that "the plea

was strategically effective for the defendant." Both

conclusions were well grounded in the facts, and together, they

support the determination that the defendant did not demonstrate

a reasonable probability that he would not have admitted to

sufficient facts or pleaded guilty had he known of OAT's

misconduct.

First, as noted above and unlike in Hallinan, 491 Mass. at

750-751, here the evidence of guilt was very powerful, not just

on the OUI charge but on the other charges as well. Cf. id. at

733 ("To establish OUI, the Commonwealth may proceed on a theory

of impairment [impaired ability to operate] or on a theory of a

per se violation [operating with a (blood alcohol content) of

0.08 percent or greater]"). In Hallinan, supra at 750, aside

from the breath test result, the evidence of impairment was

based on what the court described as "a fairly brief interaction

between [Hallinan] and the troopers and her statement that she

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had had three drinks." Here, in contrast, the defendant had

been involved in a very serious accident (his car was

undriveable), with no physical evidence that any other vehicle

was involved. The responding officer was unable to perform

field sobriety tests because the defendant, on being asked to

perform the tests, charged at and pushed the officer. Indeed,

the defendant's continuous aggressive and irrational behavior

was evidence of the defendant's impairment. The defendant

yelled at the officer, including stating that he was going to

change a tire despite the axle being completely broken. And the

defendant continued his bizarre and aggressive behavior during

his transit to the police station and booking, which included

making several graphic and detailed threats against the

responding officer and his family.

Moreover, the defendant was unsteady on his feet, had

slurred speech, and had glassy and bloodshot eyes. Throughout

the interaction, a strong odor of alcohol emanated from the

defendant. All of this evidence is important to the first and

third guiding factors in examining the prejudice prong under the

Scott-Ferrara test -- in this case the breathalyzer evidence was

not critical to the Commonwealth's case, but was cumulative of

other, very strong evidence from which a jury could find that

the defendant was intoxicated. See Hallinan, 491 Mass. at 750.

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Second, and perhaps more importantly, is that the

defendant's plea, including his admission to the OUI charge,

resulted in significant charge concessions that greatly

benefitted the defendant (the fifth factor of the Scott-Ferrara

test). See Hallinan, 491 Mass. at 750. Unlike in Hallinan,

supra at 731, 751, here the Commonwealth dismissed three

additional charges when the defendant offered to admit to

sufficient facts supporting a conviction of OUI -- assault and

battery on a police officer, negligent operation of a motor

vehicle, and disorderly conduct. These charges carried

significant potential penalties. The charge of assault and

battery on a police officer carried a minimum sentence of ninety

days' imprisonment with a maximum of two and one-half years, see

G. L. c. 265, § 13D, and the charge of negligent operation

carried a minimum sentence of two weeks' imprisonment, with a

maximum of two years along with a sixty-day license suspension,

see G. L. c. 90, § 24 (2) (a), (c). The evidence as to these

charges was also very strong (and unaffected by any issues as to

the breathalyzer evidence), and either charge could have

resulted in jail time, which the defendant initially avoided

through his pleas and admission. Additionally, here, the

defendant's license was suspended for forty-five days,

considerably less than the two-year suspension in Hallinan,

supra at 731, 752.

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In short, the evidence against the defendant here was

considerably stronger than in Hallinan (including on the non-OUI

charges), and the defendant here received a significantly more

beneficial plea disposition. The motion judge, who was also the

plea judge, properly weighed these factors in denying the

defendant's motion, as it would not have been rational for the

defendant to reject the plea deal and go to trial under the

circumstances here.

The motion judge did not abuse his discretion in concluding

that the defendant had not shown that "justice may not have been

done." Mass. R. Crim. P. 30 (b).

Order denying motion to
withdraw guilty pleas and
admission to sufficient
facts affirmed.

By the Court (Green, C.J.,
Neyman & Englander, JJ.5),

Assistant Clerk

Entered: February 29, 2024.

5 The panelists are listed in order of seniority.

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