Commonwealth v. Mark A. Griswold.

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-449

COMMONWEALTH

vs.

MARK A. GRISWOLD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a District Court order dated

March 8, 2024, denying his second motion to withdraw his plea.

We reverse.

Background. We summarize the undisputed facts. On October

21, 2013, a Barnstable police officer responded to a call for a

motorcycle accident. While the officer was traveling to the

incident, a dispatcher informed the officer that a witness

reported that the defendant had fallen off his vehicle but had

gotten back on and was traveling down the street. Upon arrival,

the officer saw the defendant struggling to keep his motorcycle

upright. When the officer stopped the defendant, the defendant

had difficulty placing the motorcycle on its stand, dropped his
helmet on the ground, and almost fell over while picking it up.

The officer asked the defendant if he was having trouble

operating his motorcycle, and the defendant responded that he

guessed it was "something mechanical" and said that he was

"fine." When the officer asked the defendant for his license

and registration, he produced his license but had to be reminded

several times to produce his registration. The defendant

initially had difficulty retrieving the registration from under

the seat. After lifting the seat, he forgot why he had opened

it. When the defendant handed his registration to the officer,

he stated that he could not find his license. The officer

reminded the defendant that the defendant had already provided

the license.

The officer smelled a strong odor of alcohol coming from

the defendant and perceived his eyes to be red, bloodshot, and

glassy. The officer described the defendant as unsteady on his

feet, and at one point the officer grabbed the defendant's

shoulder to prevent him from falling. The defendant stated that

he had had "a couple of drinks" and was on his way home from a

friend's house. The officer told the defendant that he was

concerned about the defendant's ability to safely operate his

motorcycle, and the defendant agreed to take field sobriety

tests. The defendant stated that he had a back injury but that

it would not affect his ability to walk in a straight line. The

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defendant first took the alphabet test and was able to say the

letters correctly before concluding, "X, Y, M[,] Z." The

defendant then took the nine-step walk and turn test, which he

failed due to a failure to walk heel to toe. The officer

arrested the defendant, who agreed to take a breathalyzer test.

The test result showed a blood alcohol content (BAC) of 0.20

percent. The defendant was charged with operating a motor

vehicle while under the influence of intoxicating liquor (OUI),

second offense, in violation of G. L. c. 90, § 24 (1) (a) (1),

and operating a motor vehicle without a license in violation of

G. L. c. 90, § 10.

On August 11, 2014, the defendant admitted to sufficient

facts on the OUI charge and received a sentence of sixty days

committed in the house of correction, suspended for two years,

and was ordered to participate in a fourteen-day alcohol

treatment program. The charge of operating a motor vehicle

without a license was dismissed by agreement of the parties. On

June 3, 2021, the defendant filed a motion to withdraw his plea

pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass.

1501 (2001), which the judge denied on August 4, 2021. On

December 11, 2023, the defendant filed a second motion to

withdraw plea. On February 27, the same judge held a

nonevidentiary hearing on the motion and took the matter under

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advisement. On March 8, 2024, the judge denied the motion with

a margin endorsement. 1

Discussion. "A motion for a new trial under Mass.

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

the appropriate vehicle to attack the validity of a guilty plea

or an admission to sufficient facts.'" Commonwealth v.

Hallinan, 491 Mass. 730, 744 (2023), quoting Bridgeman v.

District Attorney for the Suffolk Dist., 476 Mass. 298, 316

(2017). See Commonwealth v. Henry, 488 Mass. 484, 490 (2021)

("A motion to withdraw a guilty plea is treated as a motion for

a new trial pursuant to Mass. R. Crim. P. 30 (b)" [citation

omitted]). "[A] judge may grant a motion for a new trial any

time it appears that justice may not have been done."

Commonwealth v. Scott, 467 Mass. 336, 344 (2014). We review the

denial of a motion under Mass. R. Crim. P. 30 (b) for "abuse of

discretion or significant error of law." Hallinan, supra.

1 On August 20, 2021, the defendant appealed the denial of
his first motion to withdraw his plea. On September 12, 2022,
and on subsequent dates, we granted a stay of that appeal,
pending the issuance of the Hallinan case, see Commonwealth v.
Hallinan, 491 Mass. 730 (2023), and a second motion to withdraw
guilty plea. On April 24, 2024, following the defendant's
timely appeal of the denial of his second motion, we
consolidated the two appeals. The propriety of the first order
has not been briefed, and is deemed waived. See Commonwealth v.
Scott, 98 Mass. App. Ct. 843, 853 (2020).

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When a defendant seeks to vacate a guilty plea due to

government misconduct, "the defendant must show both that

'egregiously impermissible conduct . . . by government agents

. . . antedated the entry of his [or her] plea' and that 'the

misconduct [materially] influenced his [or her] decision to

plead guilty.'" Scott, 467 Mass. at 346, quoting Ferrara v.

United States, 456 F.3d 278, 290 (1st Cir. 2006). Defendants

seeking to vacate a conviction after trial or a guilty plea,

"and the evidence against whom included breath test results from

an Alcotest 9510 device last calibrated and certified prior to

April 18, 2019, are entitled to a conclusive presumption of

egregious government misconduct." 2 Hallinan, 491 Mass. at 731.

This describes the defendant's case. Therefore, the sole

question presented is whether the government's misconduct

materially "influenced [the defendant's] decision to plead

guilty." Hallinan, 491 Mass. at 731, quoting Scott, 467 Mass.

at 346.

"These showings are inherently case specific."

Commonwealth v. Crump, 105 Mass. App. Ct. 307, 312 (2025). A

defendant must "demonstrate a reasonable probability that [the

defendant] would not have pleaded guilty had [the defendant]

known of [the government] misconduct." Hallinan, 491 Mass. at

2 Any breath test results must be excluded from any
subsequent trial. Hallinan, 491 Mass. at 755.

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750. "Establishing such a reasonable probability requires

examining the totality of circumstances, guided by a number of

specific factors." Id. Those factors include:

"(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."

Id., quoting Scott, 467 Mass. at 355-356.

The judge did not address the Scott-Ferrara factors in his

decision, which consisted of a handwritten notation. 3 Based on

our review of the record, we conclude that it was a clear error

of law to deny the defendant's motion. The facts here are

similar to those in Hallinan. Like the defendant here, the

defendant in Hallinan had red, glassy eyes, smelled of alcohol,

and admitted to having had a few drinks. Hallinan,`491 Mass. at

732. The defendant in Hallinan appeared "dazed," id., while the

officer noted that the defendant here appeared "confused."

Here, as in Hallinan, the defendant's breathalyzer result was

the "crown jewel" in the prosecution's case against the

In his March 8, 2024 order, the judge noted that he found
3

that "there is sufficient evidence in the police report to
support a conviction w/o the [b]reath test."

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defendant. Id. at 750 (describing breathalyzer result of 0.23

percent BAC as "'the crown jewel'" -- the most inculpatory piece

of evidence against the defendant"). The defendant had a 0.20

percent BAC result, which was two and one-half times the legal

limit of .08 percent. See G. L. c. 90, § 24 (1) (a) (1).

Unlike the defendant in Hallinan, who failed to complete

any field sobriety tests, see Hallinan, 491 Mass. at 732, the

defendant here completed the alphabet test correctly up to "X,

Y, M[,] Z," and the officer did not report that he had failed

this test.

While the officer reported that the defendant failed the

nine-step walk and turn test because he did not walk heel to

toe, the defendant submitted medical records in support of his

motion showing that he was evaluated at a hospital emergency

department for severe leg and hip pain three months before his

arrest. According to those records, the defendant "bent over at

one point, and had trouble getting up due to the pain; tonight

his leg just gave out." The medical records support the

defendant's assertion in his affidavit that he "was suffering

from a back and hip injury" at the time he was stopped by the

police.

We conclude that the defendant has "demonstrate[d] a

reasonable probability that he . . . would not have pleaded

guilty had he . . . known of [the government] misconduct."

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Hallinan, 491 Mass. at 750. While the breathalyzer result was

not the only evidence of the defendant's impairment, the

additional evidence was similar to the evidence in Hallinan and

not overwhelming -- here, the defendant did not fail the

alphabet test and a fact finder might have accepted the

defendant's explanation that his back and hip injuries had

interfered with his ability to perform the walk and turn test.

The defendant also submitted an affidavit from his plea

counsel in which she stated that she believed that "the failed

breathalyzer result was one of the significant factors behind

the decision to dispose of the case rather than proceeding to

trial" and that the "high test result . . . was an incriminating

piece of evidence." The defendant stated in his affidavit that

his attorney told him that the breathalyzer evidence "was

damaging and that it would be tough to win the case." He

asserted that he would not have pleaded guilty had he known

about the misconduct and that his decision to plead guilty was

based on his attorney's advice and on his belief that the breath

test was admissible evidence.

Furthermore, "the disposition that the defendant received

was not so favorable that the benefits of the plea outweighed

the value of the evidence." Hallinan, 491 Mass. at 751. There

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was no evidence that the Commonwealth offered a charge

concession as part of the plea. 4

Based on the record, we conclude that the judge erred in

denying the defendant's second motion to withdraw his plea.

Accordingly, the order denying the defendant's second

motion to withdraw his plea is reversed. The case is remanded

to the District Court for further proceedings.

So ordered.

By the Court (Sacks,
Hershfang & Tan, JJ. 5),

Clerk

Entered: July 7, 2025.

4 While the Commonwealth agreed to dismiss the operating
without a license charge, the maximum penalty for a guilty
finding on that charge carries only a fine.

5 The panelists are listed in order of seniority.

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