Commonwealth v. Hart
Commonwealth v. Hart
Opinion of the Court
In 2009, the defendant pleaded guilty to a complaint charging him with disorderly conduct in violation of G. L. c. 272, § 53, and resisting arrest in violation of G. L.
1. Background. As revealed in the prosecutor’s recitation of the evidence at the plea hearing, which was supplemented by the police report offered by the defendant at the hearing on the motion for new trial,
When the defendant gained access a final time, the officers escorted him outside, called for backup, and told the defendant that if he did not cease his actions, he would be arrested. The defendant then began yelling, “Fuck that bullshit, you better not touch me motherfuckers, I don’t like the fucking police.” The defendant did not calm down and continued to disturb the area, and when the officers “went to place him under arrest. . . , he resisted their arrest.” In an earlier portion of the prosecutor’s recitation, he stated that when the officers asked the defendant to calm down, the defendant “continued to mouth off to the police and then he resisted a little bit when they went to arrest him.”
2. Discussion. “A plea of guilty and the ensuing conviction
The basic permissible record indicators of an intelligent admission of guilt are “(1) an explanation by the judge of the elements of the crime; or (2) a representation that counsel has explained to the defendant the elements he admits by his plea; or (3) defendant’s statements admitting facts constituting the unexplained elements.” Commonwealth v. Sherman, 451 Mass. 332, 335 (2008), quoting from Commonwealth v. Colantoni, 396 Mass. 672, 679 (1986). See Henderson v. Morgan, 426 U.S. 637, 646 (1976); Smith, Criminal Practice and Procedure § 23.65 (3d ed. 2007).
a. Counsel explained the elements. If there was an insufficient factual basis in the prosecutor’s recitation of the facts that purported to constitute the crime of resisting arrest, the analysis does not stop there. What the defendant and the dissent fail to consider is that a sufficient recitation of the facts admitted by the defendant is but one of three independent methods of demonstrating that a plea is intelligent. See Commonwealth v. Sherman, supra. See also Commonwealth v. Furr, 454 Mass. 101, 107 (2009) (intelligence of guilty plea may be established by any one of three methods).
In support of its conclusion that reversal of a conviction stemming from a guilty plea is required when the recited facts do not support the elements of the crime, the dissent relies on Commonwealth v. DelVerde, 398 Mass. 288, 296-297 (1986), but that reliance is misplaced. DelVerde did not reshuffle the due process deck relative to guilty plea requirements. Rather,
b. Sufficient factual basis. Although we need go no further, we note our disagreement with the defendant’s claim, accepted by the dissent, regarding the sufficiency of the factual basis that supported the guilty plea. The defendant claims that no facts existed to support the crime of resisting arrest. Similarly, the dissent concludes that there was no evidence that the defendant “mouthed off” or was “disturbing the area” after the arrest whs effectuated or that the defendant’s conduct rose to the level of using or threatening to use physical force or violence against the police. But both claims take too narrow a view of the facts and the law. As a starting point, a reasonable person, once warned to stop his interference with an investigation or face arrest, who then continues to interfere and make profanity-laden threats of his dislike of the police and directing them not to touch him in no uncertain terms, would have known he was being arrested. See Commonwealth v. Grandison, 433 Mass. 135, 145-146 (2001) (occurrence of arrest measured objectively).
The dissent views too narrowly when an arrest is effectuated and thus excludes from consideration the defendant’s words and actions occurring after the point in time in which the dissent deems that arrest to have been effectuated. As we have held, “[f]or purposes of G. L. c. 268, § 32B, the act of preventing, or attempting to prevent, the effecting of an arrest does not invite a snapshot of a moment in time that is deemed to be ‘the arrest’ after which the defendant’s behavior becomes wholly irrelevant.
Here, the defendant’s abusive and belligerent behavior, coupled with his interference with the investigation, which was twice described as “resisting,” was sufficient to constitute resisting arrest under either method provided by the statute. In addition, as we stated in Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 357 (2010), the crime of resisting arrest is self-explanatory. The dissent endeavors to reject this notion with an explanation based on Tavernier’s conduct in that case, instead of demonstrating why this is not a commonly understood phrase, which we believe it to be. While “resisting arrest” has a legal connotation, to “resist” carries as much, if not more, of a commonly understood meaning as does “rape.” See Commonwealth v. Sherman, 451 Mass. at 336-338 (admission he “forcibly raped” victim sufficient to satisfy missing element — sexual intercourse — based on common meaning of the term). Indeed, Webster’s Third New International Dictionary 1932 (2002), defines “resist” as to “withstand the force or effect of: to be able to repel or ward off”; “to exert oneself to counteract or defeat: strive against: oppose.” Indeed, “resisting arrest” appears as an example of the word’s use. Ibid. See Commonwealth v. Wiswall, 43 Mass. App. Ct. 722, 723 (1997) (phrase “assault with intent to kill” in guilty plea self-explanatory on element of intent); Commonwealth v. DeCologero, 49 Mass. App. Ct. 93, 97 (2000) (judge’s use of term “marketing,” along with statement as to amount Commonwealth would be required to prove, made cocaine trafficking charge self-explanatory).
The defendant received, as due process required, “real notice of the true nature of the charge against him.” Henderson v. Morgan, 426 U.S. at 645, quoting from Smith v. O’Grady, 312 U.S. 329, 334 (1941). The denial of the motion for new trial was not “manifestly unjust.” Commonwealth v. Grant, 426
Order denying motion for new trial affirmed.
Order denying motion for reconsideration affirmed.
The defendant does not challenge his disorderly conduct conviction.
The defendant supplemented the record with the police report, from which the prosecutor read during the guilty plea colloquy. See Commonwealth v. Nolan, 19 Mass. App. Ct. 491, 492 (1985).
The defendant does not claim his plea was involuntary. Nor does he alleged that he was unaware of the intratrial rights he was forgoing by pleading guilty, or that his plea was made without a “sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970). See Boykin v. Alabama, 395 U.S. 238, 243 (1969).
In support of its conclusion that reversal of a conviction based on a guilty
At the hearing on the motion for new trial, the judge (who also accepted the defendant’s plea) noted that the transcript of the plea colloquy included some portions that were noted as “inaudible.” Based on his practice of what he asks “every time,” the judge specifically added that he asks whether defendants have been advised of the elements of the offense. The defendant does not challenge this.
Dissenting Opinion
(dissenting, with whom Rubin, J., joins). I agree with the majority, of course, that a constitutionally valid plea “must be voluntary and intelligent,” Commonwealth v. Hunt, 73 Mass. App. Ct. 616, 619 (2009), and that “[a] guilty plea generally is voluntary and an intelligent admission of guilt ‘if the record shows ... a representation that counsel has explained to the defendant the elements he admits by his plea.’ ” Commonwealth v. Sherman, 451 Mass. 332, 335 (2008), quoting from Commonwealth v. Colantoni, 396 Mass. 672, 679 (1986). However, I am not satisfied that a defense counsel’s explanation of the elements of the charge relieved the judge of the independent duty to ensure that there was a factual basis for the charge. See Mass.R.Crim.P. 12(c)(5), as amended, 399 Mass. 1215 (1987); Commonwealth v. DelVerde, 398 Mass. 288, 296-297 (1986).
Pursuant to Mass.R.Crim.R 12(c)(5), “[t]he judge shall conduct a hearing to determine the voluntariness of the plea or admission and the factual basis of the charge” and “shall not accept a plea of guilty unless the judge is satisfied that there is
The analysis whether the defendant’s plea was voluntary and intelligent is distinct from the determination whether there is a factual basis for the charge, and the gravamen of the defendant’s complaint here is that there was no such factual basis. In Commonwealth v. Jones, 60 Mass. App. Ct. 88 (2003), the
While the plea in this case may have been voluntary and intelligent, the evidence presented cannot provide a factual basis for the charge of resisting arrest. The prosecutor’s recitation of facts provided the only evidence at the time of the plea hearing. In pertinent part, the prosecutor’s narration was as follows:
“Basically, Judge, the facts of this case are this defendant came home, the police were there dealing with an argument from two other people. He said, ‘What the “F” is going on? This is my “f-ing” house,’ which, apparently, it was. They proceeded outside, there was a crowd gathering and then he continued to mouth off to the police and then he resisted a little bit when they went to arrest him are the essential facts, Judge.
“[J]ust kind of, honestly, Judge, kind of hard to infer with
“Judge, . . . this defendant arrived home, the police were at his residence when he arrived home. They asked him — He was excited, they asked him to calm down and they brought him outside. There was a crowd gathering; he continued to disturb the area. When the police went to place him under arrest for this, he resisted their arrest.”
Resisting arrest requires evidence that the defendant “knowingly prevent[ed] or attempted] to prevent a police officer . . . from effecting an arrest . . . by: (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” G. L. c. 268, § 32B(a), inserted by St. 1995, c. 276. “ ‘[T]he crime [of resisting arrest] is committed, if at all, at the time of the “effecting” of an arrest.’ Commonwealth v. Grandison, 433 Mass. 135, 145. An arrest is effected when there is (1) ‘an actual or constructive seizure or detention of the person, [2] performed with the intent to effect an arrest and [3] so understood by the person detained.’ Ibid., quoting from Commonwealth v. Cook, 419 Mass. 192, 198 (1994). The standard for determining whether a defendant understood that he was being arrested is objective — whether a reasonable person in the defendant’s circumstances would have so understood.” Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008).
Here, the only facts before the judge at the plea hearing
The statement that the defendant “resisted arrest” provides no information about the underlying facts necessary to establish the elements of the crime charged. The majority relies on passing dicta in Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 357 (2010), to show that the charge of “resisting arrest” is “self-explanatory” such that the term obviated the need for additional facts on the record. In Tavernier, there was evidence that the defendant struggled when officers approached him after he had completed multiple drug transactions and attempted to place him in custody. Ibid. He acknowledged in his plea hearing that he “used force against officers effecting a lawful arrest.” Ibid.
I agree that “resisting arrest” carries a legal connotation, but disagree that to “resist” carries a commonly understood meaning so as to provide a factual understanding of the defendant’s behavior. “Resisting arrest” does not necessarily imply particular behavior by the defendant that would constitute “using or threatening to use physical force or violence” or “other means which creates a substantial risk of causing bodily injury.” G. L. c. 268, § 32B(a). This is made evident by the generalities in the definition cited by the majority such as to “withstand,” “repel or ward off,” “strive” and “oppose.” By comparison, to “forcibly rape[]” commonly indicates the more specific behavior of “sexual intercourse” that was required in Commonwealth v. Sherman, 451 Mass. 332, 336 (2008). See Commonwealth v. Jones, 60 Mass. App. Ct. at 91 (neither “assault and battery” nor “intimidation of a witness” are self-explanatory, regardless of whether they have “entered common parlance”).
The police report was not submitted at the plea hearing, and the judge did not have the benefit of it when determining whether
As with the plea colloquy, this evidence cannot, without more, establish the elements of resisting arrest. The police report is explicit that the arrest was made “subsequent” to the yelling and quoted statements. Although the police had warned the defendant to calm down or “he would be subject to arrest,” a reasonable person would not construe a verbal warning that they could be arrested as initiating an arrest. Nor does the record reveal additional facts that might lead a reasonable person to understand that the warning was not actually a warning and that an arrest was, in fact, occurring. See Commonwealth v. Grant, 71 Mass. App. Ct. at 209 (defendant did not resist arrest when he fled from officers who intended to arrest him because they did not objectively communicate that intention to defendant before or during pursuit).
The imprecision in the majority’s assertion that a reasonable person who is warned to discontinue his interference in an investigation or face arrest and then continues to interfere “would have known he was being arrested” is a matter of real concern. Resisting arrest occurs “at the time of the ‘effecting’ of an arrest,” an element of which is the “actual or constructive seizure or detention of the person.” Commonwealth v. Grant, supra at 208, quoting from Commonwealth v. Grandison, 433 Mass. at 145, and Commonwealth v. Cook, 419 Mass. at 198. Since one cannot be criminally punished for resisting arrest based on
As there is no view of the information before the judge at the time of the entry of the plea that can support the charge of resisting arrest, I would reverse. Compare Commonwealth v. Jenner, 24 Mass. App. Ct. 763, 771-775 (1987).
See also Reporters’ Notes to Rule 12(c)(5)(A), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1438-1439 (LexisNexis 2011-2012) (“The ‘factual basis’ standard can be met by having the prosecutor state for the record the evidence that the Commonwealth would have presented had the case gone to trial. In addition, the court may require sworn testimony from a prosecution witness or of the defendant”); Commonwealth v. DelVerde, 398 Mass. at 297, quoting from North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (if the defendant professes innocence, the court may accept a guilty plea “if the State can demonstrate a ‘strong factual basis’ for the plea”).
The court in Commonwealth v. DelVerde, 398 Mass. at 297, cited Henderson v. Morgan, 426 U.S. 637, 645-646 (1976), as supporting the factual basis requirement. The court also found Santobello v. New York, 404 U.S. 257, 261 (1971) , instructive. There, the Supreme Court explained that under Fed.R. Crim.P. 11, “the sentencing judge must develop, on the record, the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge. The plea must, of course, be voluntary and knowing . . . .” (Footnote omitted.) Rule 11 of the Federal Rules of Criminal Procedure, which mirrors our own Mass.R.Crim.P. 12(c)(5)(A) on the factual basis requirement, provides in pertinent part: “The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”
The only additional evidence comes from the police report, which the defendant introduced on appeal and which I discuss below.
In the case before us, there was no evidence of a struggle, and the defendant did not acknowledge that he used force during the arrest.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.