Commonwealth v. Troy Anderson.

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

21-P-1124

COMMONWEALTH

vs.

TROY ANDERSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2011, the defendant was indicted and arraigned in the

Superior Court on several counts of possession and distribution

of cocaine.1 The drugs were tested at the William A. Hinton

State Laboratory Institute (Hinton lab). The defendant

ultimately pleaded guilty in 2014 to one count of distribution

of cocaine as a subsequent offender and one count of possession

of cocaine with the intent to distribute and was sentenced.2 In

1 On August 23, 2011, a grand jury returned indictments charging
the defendant with unlawful possession of cocaine with the
intent to distribute and distribution of cocaine, G. L. c. 94C,
§ 32A (c), with enhancements as a subsequent offender, G. L.
c. 94C, § 32A (d), and a habitual offender, G. L. c. 279,
§ 25 (a); and unlawful distribution of a class B substance in a
school zone, G. L. c. 94C, § 32J.
2 The Commonwealth agreed to dismiss the school zone charge, the

habitual offender enhancements, and the subsequent offender
enhancement attached to the possession charge. After a
colloquy, the plea judge accepted the defendant's guilty pleas
and sentenced him to three and one-half years on the
2021, the defendant filed an assented-to motion to withdraw his

guilty pleas; his motion was denied. Because we are not

persuaded that the motion judge's ruling involved any violation

of the separation of powers doctrine or that the defendant

otherwise satisfied the showing required to establish

entitlement to a new trial, see Mass. R. Crim. P. 30 (b), as

appearing in 435 Mass. 1501 (2001), we affirm.

Background. In or around July 2011, prior to the

defendant's arraignment and his pleas, the drugs at issue in his

case were tested at the Hinton lab. Subsequent investigation

revealed that chemist Annie Dookhan, who worked at the Hinton

lab during that time, engaged in serious misconduct in her

handling of drug samples while at work, and that the lab

suffered from a lack of operational oversight. See Commonwealth

v. Scott, 467 Mass. 336, 338-342 (2014). There is, however, no

dispute that Dookhan herself was not involved in the testing or

certification of the substances in the defendant's case, and the

defendant made no claim that any specific government misconduct

tainted the testing of those particular drugs.

Based on concerns about "systemic misconduct in the Hinton

Lab," on March 22, 2021, the Suffolk County District Attorney's

office announced the "Hinton Lab Initiative," pledging to treat

distribution count and two years of probation from and after
that sentence on the possession count.

2
all defendants with convictions based on substances tested at

Hinton lab between May 1, 2003, and August 30, 2012, as "List

Two" defendants, as described in Bridgeman v. District Attorney

for the Suffolk Dist., 476 Mass. 298, 327-328 (2017)

(Bridgeman II), and on that basis, to seek to vacate and dismiss

those convictions.3 Six months later, on September 21, 2021, the

defendant filed a motion for new trial seeking to withdraw his

guilty pleas pursuant to Mass. R. Crim. P. 30 (b), as appearing

in 435 Mass. 1501 (2001), citing to the District Attorney's

pledge in furtherance of the Hinton Lab Initiative. Although

the Commonwealth assented to the defendant's motion, the motion

judge denied it, explaining that the defendant had failed to

show that any misconduct occurred in the testing of the

substances in his case. The defendant filed a timely appeal.4

Discussion. 1. Standard of review. "Under Mass. R. Crim.

P. 30 (b), a judge may grant a motion for a new trial any time

it appears that justice may not have been done. A motion for a

3 In Bridgeman II, the Supreme Judicial Court set out a protocol
for case-by-case resolution of "the drug cases of potentially
more than 20,000 relevant Dookhan defendants" that then
remained. Bridgeman II, 476 Mass. at 327. The "List Two"
defendants are the "relevant Dookhan defendants" -- those who
were convicted of drug offenses or pleaded guilty after their
drug certificate was signed by Dookhan, see id. at 306 n.8 --
whose cases the District Attorneys would identify for dismissal
following an individualized review. Id. at 327-328.
4 The Commonwealth did not file a brief in this matter but did

appear and answer questions at oral argument.

3
new trial is thus committed to the sound discretion of the

judge." Scott, 467 Mass. at 344. Our review is for an abuse of

that discretion. Id. But see Commonwealth v. Watkins (No. 1),

486 Mass. 801, 804 (2021).

2. Separation of powers. We discern no separation of

powers issue or other infringement on the prosecutor's authority

in the judge's denial of the defendant's assented-to motion to

vacate his pleas. The defendant's argument to this effect

relies on a misunderstanding of the limitations on a district

attorney's discretion to dismiss a case.

In Massachusetts, "[a] prosecuting attorney may enter a

nolle prosequi of pending charges at any time prior to the

pronouncement of sentence or the imposition of probation or the

entry of an order of continuance without a finding." Mass. R.

Crim. P. 16 (a), as amended, 489 Mass. 1501 (2022).5 Once a

defendant has been sentenced, the power to correct errors or

otherwise address unfairness in that case is vested in the

judiciary, not in the executive branch. See Commonwealth v.

Dascalakis, 246 Mass. 12, 20 (1923). It is for that reason

that, even when the Commonwealth affirmatively supports reversal

of a conviction on appeal, we have the "duty of independently

5 Of course, once jeopardy attaches, a nolle prosequi without the
consent of the defendant acts as an acquittal. Mass. R. Crim.
P. 16 (b), 378 Mass. 885 (1979).

4
determining whether there was error." Commonwealth v. Waterman,

98 Mass. App. Ct. 651, 654 (2020). Accord Commonwealth v.

DeJesus, 468 Mass. 174, 182 n.8 (2014). Indeed, on occasion we

have affirmed a conviction on appeal despite the Commonwealth's

agreement that it should be reversed. See, e.g., Commonwealth

v. McCollum, 79 Mass. App. Ct. 239, 248-249 (2011).

For that reason, notwithstanding the prosecution's assent

to the defendant's motion, art. 30 of the Massachusetts

Declaration of Rights did not, as the defendant contends,

require the motion judge to accede to the prosecutor's wishes.

Rather, because "the proper administration of the criminal law

cannot be left merely to the stipulation of parties," the motion

judge's "judicial obligations compel[led him] to examine

independently the errors confessed." Commonwealth v. Poirier,

458 Mass. 1014, 1015 (2010), quoting Young v. United States, 315

U.S. 257, 258-259 (1942). The District Attorney's assent to the

motion did not necessitate that the judge grant it under

separation of powers principles or any other theory of

prosecutorial authority. There was no abuse of discretion or

error of law in the judge's denial of the defendant's motion on

this basis.

3. Governmental misconduct. To the extent that the

defendant argues that the District Attorney's assent to his

motion reflected that misconduct at the Hinton lab rendered the

5
evidence in his case "unreliable," and that he was therefore

entitled to withdraw his pleas on that basis, we are not

persuaded.

In 2014, the Supreme Judicial Court laid out the method for

analyzing cases in which a defendant has moved to withdraw a

guilty plea due to misconduct affecting the testing of drugs in

his or her case at the Hinton lab. In Scott, 467 Mass. at 346-

353, the court articulated a two-part test based on Ferrara v.

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

test). See Bridgeman II, 476 Mass. at 304. "Under the first

prong of the analysis, a defendant must show egregious

misconduct by the government that preceded the entry of the

defendant's guilty plea and that occurred in the defendant's

case." Commonwealth v. Resende, 475 Mass. 1, 3 (2016). Where

Dookhan signed a defendant's drug certificate as the primary or

secondary analyst, the defendant is entitled to a conclusive

presumption as to the first prong. Scott, supra at 352.

The defendant here has not shown or alleged that Dookhan

signed his drug certificate, only that the substances underlying

his conviction were tested at the Hinton lab during the

timeframe that Dookhan worked there. Where, as in this case,

Dookhan was not involved in the testing of the substances, the

defendant is not entitled to the presumption under Scott,

6
regardless of the District Attorney's support of the motion.6

Absent that presumption, the defendant -- who proffered no

evidence of misconduct specific to his case -- failed to show

more than that the drugs were tested at the Hinton lab during

the time that Dookhan or Sonja Farak, the chemist at the heart

of a separate scandal, worked there.7 On the record before us,

the judge acted within his discretion in denying the motion for

failure to meet the first prong of the Ferrara-Scott test.8 See

Commonwealth v. Lewis, 96 Mass. App. Ct. 354, 361 (2019).

Conclusion. The judge did not abuse his discretion in

denying the defendant's motion for new trial and, accordingly,

6 We note that the District Attorney's response to the
defendant's motion for new trial states that, here, the assent
was based on her concerns about "systemic corruption and
misconduct," and not on "any additional identified misconduct by
individual Hinton Lab employees or any insufficiency of the
Hinton Drug Lab investigation." The Commonwealth has not taken
any different position on appeal.
7 The defendant does not claim that Farak had any role in

analyzing the drugs in his case.
8 Should evidence come to light showing misconduct connected to

the defendant's drug certificate, nothing in our decision today
should be read to preclude the defendant from filing a new
motion supported by the newly uncovered evidence.

7
the order is affirmed.

Order denying motion for new
trial affirmed.

By the Court (Ditkoff, Hand &
D'Angelo, JJ.9),

Clerk

Entered: June 2, 2023.

9 The panelists are listed in order of seniority.

8