Commonwealth v. Jonalson N. Dor.

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-1054

COMMONWEALTH

vs.

JONALSON N. DOR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Jonalson N. Dor, appeals from the denial of

his motion to withdraw his guilty plea to possession of

marijuana with intent to distribute, G. L. c. 94C, § 32C (a).

He contends that the judge at the plea hearing (plea judge) did

not have a sufficient factual basis to establish the defendant's

intent to distribute. We affirm.

Background. In 2017, a three-count complaint issued

against the defendant in the Boston Municipal Court. 1 The count

1The two counts not before us alleged that the defendant
violated the drug laws in or near a park, G. L. c. 94C, § 32J,
and had previously been convicted of a similar offense, G. L.
c. 94C, § 32C (b). Those two counts were dismissed at the
request of the Commonwealth. Had the defendant been convicted
of those counts, he would have been subject to mandatory
at issue here alleged that on July 4, 2017, the defendant

knowingly possessed marijuana, a class D substance, "with intent

to manufacture, distribute, dispense or cultivate" it. On

August 6, 2018, the defendant pleaded guilty to that offense.

At the plea hearing, the prosecutor recited the facts of the

crime as follows:

"On July 4th, 2017, officers from that A1 drug control unit
under the direction of Sergeant Dwan, were conducting a
drug investigation on Boston Common.

"At about 7:10 P.M., officers observed the Defendant . . .
in the area approaching two males, later identified as
Matthew Corbett and Reid Westhaver. [The defendant] spoke
to the pair briefly before all three began walking further
up the path towards Beacon Street. [The defendant] then
approached a [B]lack male, later identified as Carl
Cody, . . . and sat on the bench next to him.

"Officers observed what appeared to be a drug transaction
at that point. After the transaction was done, the
Defendant was sitting on the bench, holding a cup in his
hand, and then began walking down the path towards Tremont
Street and Park Street.

"At this point, officers believe they just witnessed a
street-level drug transaction, relayed their observations
and the parties' direction of travel to other surveillance
officers. Officer B[yrne] believed that [the defendant]
was acting as a middleman between Cody, and Westhaver, and
Corbett.

"Officers maintained surveillance as the group walked near
the Brewer water fountain and joined a larger group. At
this point, Sergeant Dwan approached. The Defendant
identified himself, and the [sergeant] observed the blue
cup to be filled with loose vegetable matter, believed to
be marijuana buds. . . . The drugs in this case were
tested and determined to be marijuana."

sentences of two and one-half years for the park zone offense
and one year for the subsequent offense.

2
During a sworn colloquy, the plea judge asked, "And you admit

those facts are true as far as your involvement in the matter?"

and the defendant replied, "Yes." The plea judge then asked if

the defendant's counsel had the opportunity to discuss "the

elements" of the offense, and counsel agreed. The plea judge

found that there was "a factual basis" for the plea. In

accordance with the parties' agreement, the plea judge sentenced

the defendant to one year of probation.

On May 10, 2023, the defendant moved to withdraw his plea,

arguing that the plea judge did not have a sufficient factual

basis for the offense. Because the plea judge had retired,

another judge (motion judge) considered the motion. The

defendant contended that the prosecutor's narrative at the plea

hearing did not establish that he intended to distribute the

marijuana. The motion judge denied the motion.

Discussion. We treat a motion to withdraw a guilty plea as

a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b),

as appearing in 435 Mass. 1501 (2001). See Commonwealth v.

Henry, 488 Mass. 484, 490 (2021). Where, as here, the motion

judge did not preside over the plea hearing and did not conduct

an evidentiary hearing, "we are in as good a position as the

motion judge to assess the [plea] record and therefore review

the motion judge's decision de novo." Commonwealth v. Watkins

(No. 1), 486 Mass. 801, 804 (2021). See Commonwealth v.

3
Rodriguez, 101 Mass. App. Ct. 54, 56 (2022). We may grant

withdrawal of the plea "if it appears that justice may not have

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

The plea judge accepted the defendant's guilty plea to

count one of the complaint, which alleged that the defendant

knowingly possessed the marijuana "with intent to . . .

distribute" it. 2 The plea agreement included the parties'

agreed-on sentencing recommendation and the Commonwealth's

concession to dismissing counts two and three, the park zone and

subsequent offense charges that carried mandatory minimum

sentences of incarceration. See note 1, supra. In these

circumstances, Mass. R. Crim. P. 12 (d) (5), as appearing in 470

Mass. 1501, 1508-1509 (2015), required that the plea judge

determine that the plea was supported by "an adequate factual

basis." 3 See Commonwealth v. Ramos-Cabrera, 486 Mass. 364, 366

(2020). See also Commonwealth v. Abreu, 102 Mass. App. Ct. 51,

54 n.4 (2022) (Mass. R. Crim. P. 12 [c] [5] [A], 442 Mass. 1514

[2004], required "adequate factual basis" when judge accepted

2 We do not reach the question whether the facts recited by
the prosecutor would have provided an adequate factual basis for
alternative theories alleged in the complaint: that the
defendant intended to "manufacture, . . . dispense or cultivate"
the marijuana, G. L. c. 94C, § 32C (a), which was in the form of
loose buds.
3 The plea judge found that there was "a factual basis" for

the plea. In context, we read that finding to mean that there
was an adequate factual basis.

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plea with unagreed sentencing recommendation). Before accepting

the defendant's guilty plea to possession of marijuana with

intent to distribute, the plea judge was required to determine

if there was an adequate factual basis to establish that the

defendant knowingly possessed marijuana with the intent to

distribute it. G. L. c. 94C, § 32C (a). See Commonwealth v.

Richardson, 479 Mass. 344, 353 (2018).

Here, the recitation of facts by the prosecutor established

that the defendant spoke with two men on Boston Common and then

left them and met a third man, at which point police officers

saw the defendant engage in "what appeared to be a drug

transaction." After the transaction, the defendant, holding a

cup "filled" with loose marijuana buds, rejoined the first two

men and all three walked toward a larger group. An experienced

drug control officer "believed that [the defendant] was acting

as a middleman." The defendant admitted to those facts, which

provided an adequate basis for the plea judge to accept the

defendant's plea to the charge of possession of marijuana with

intent to distribute.

The transcript of the plea hearing did not explicitly set

forth that the crime to which the defendant was pleading guilty

included the element that he intended to distribute the

marijuana. However, count one of the complaint alleged that the

defendant had the "intent to . . . distribute" the marijuana,

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and the tender of plea form signed by the defendant stated that

his recommendation on that count was "Agreed." In addition,

defense counsel told the plea judge that he had had the

opportunity to discuss "the elements" of the offense with the

defendant. The defendant does not argue that his guilty plea

was not made voluntarily or intelligently. See Commonwealth v.

Scott, 467 Mass. 336, 345 (2014). While it would have been

preferable if at the plea hearing the defendant's admission to

intent to distribute had been made more explicit, we conclude

that the factual basis on that element was adequate.

Citing Commonwealth v. Armstrong, 88 Mass. App. Ct. 756,

758 (2015), the defendant contends that the Commonwealth was

required to establish a "strong factual basis" for each element

of the offense. As explained in Abreu, 102 Mass. App. Ct. at 54

n.4, the requirement of establishing a "strong" factual basis

applies when a defendant enters a plea without admitting guilt

pursuant to North Carolina v. Alford, 400 U.S. 25, 37-38 (1970).

The defendant in this case did not enter an Alford plea.

Rather, he admitted to the facts recited by the prosecutor, and

that admission was itself strong proof of his guilt.

Alternatively, the defendant argues that the facts recited

by the prosecutor did not establish even an adequate factual

basis for the plea. During the plea colloquy, the defendant

admitted to the facts recited by the prosecutor, including that

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an experienced drug control officer believed that the defendant

"was acting as a middleman." We are not persuaded by the

defendant's claim that that was an admission only to the

officer's belief, and not to the fact that the defendant was

acting as a middleman. In the context of the other facts

adduced at the plea hearing about the defendant's conduct, the

plea judge had an adequate factual basis for the intent to

distribute element of the crime.

The defendant misplaces his reliance on Commonwealth v.

Ilya I., 470 Mass. 625, 633 (2015), in which the Supreme

Judicial Court held that an application for a complaint did not

establish probable cause that a juvenile intended to distribute

marijuana. In contrast, this defendant did not move to dismiss

the complaint for lack of probable cause, see Commonwealth v.

McCarthy, 385 Mass. 160, 163 (1982), and does not argue on

appeal that it should not have issued. Thus Ilya I. is

inapposite to the question of the adequacy of the factual basis

for the plea based on information that included the defendant's

own admission of guilt.

The defendant posits that he may have had a "social

sharing" defense to possession with intent to distribute. See

G. L. c. 94G, § 7 (a) (4); Commonwealth v. Jackson, 464 Mass.

758, 764 (2013); Commonwealth v. Keefner, 461 Mass. 507, 514-515

(2012). The defendant waived his right to mount that defense

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when he told the plea judge that he understood that he was

giving up the right to present evidence on his own behalf. Even

if the defendant might have argued at a trial that his conduct

was consistent with social sharing, "[w]hen a criminal defendant

pleads guilty, [the defendant] waives [the] right to be

convicted by proof beyond a reasonable doubt" (citation

omitted). Commonwealth v. Robbins, 431 Mass. 442, 444 (2000).

The prosecutor's recitation of facts, coupled with the

defendant's admission to those facts, provided an adequate

factual basis for the plea judge to conclude that the defendant

had the intent to distribute the loose marijuana buds in the

8
cup. Accordingly, the order denying the motion to withdraw the

guilty plea is affirmed.

So ordered.

By the Court (Desmond, Hand &
Grant, JJ. 4),

Assistant Clerk

Entered: May 23, 2024.

4 The panelists are listed in order of seniority.

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