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-867

COMMONWEALTH

vs.

ALBERTO SOTO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2013, the defendant, Alberto Soto, pleaded guilty in 

District Court to operating a motor vehicle while under the

influence of liquor, second offense, G. L. c. 90, 

§ 24 (1) (a) (1). In 2021, the defendant filed a motion to 

withdraw his plea. The defendant appeals from the order denying

his motion. Concluding that the judge acted within his

discretion in concluding that the defendant had not demonstrated 

a reasonable probability that he would not have pleaded guilty 

had he known of government misconduct, we affirm.

1. Standard of review. "A motion to withdraw a guilty 

plea is treated as a motion for a new trial pursuant to Mass. R. 

Crim. P. 30 (b)." Commonwealth v. Lastowski, 478 Mass. 572, 575 
2

(2018), quoting Commonwealth v. Sylvester, 476 Mass. 1, 5

(2016). "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.'" Commonwealth v. Barros, 494 

Mass. 100, 111 (2024), quoting Sylvester, supra. "Particular 

deference is to be paid to the rulings of a motion judge who 

served as the [plea] judge in the same case." Commonwealth v. 

Lewis, 96 Mass. App. Ct. 354, 357 (2019), quoting Sylvester, 

supra at 6.

2. Withdrawal of guilty plea. Where, as here, the 

defendant pleaded guilty and the evidence against him included 

breath test results from an Alcotest 9510 breathalyzer last 

calibrated prior to April 18, 2019, he is "entitled to a 

conclusive presumption of egregious government misconduct." 

Commonwealth v. Hallinan, 491 Mass. 730, 731 (2023). In that 

circumstance, to obtain relief, the defendant must "demonstrate 

a reasonable probability that he or she would not have pleaded 

guilty had he or she known of [the] misconduct." Id. at 750.

Factors to consider in determining whether such a reasonable 

probability has been established 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 
3

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 Commonwealth v. Scott, 467 Mass. 336, 355 (2014). 

The plea judge acted within his discretion in deciding that the 

defendant failed to meet that burden.

Even without the breathalyzer evidence, the case against 

the defendant was strong. When a State trooper turned on his 

lights to stop the defendant for a headlights infraction, the 

defendant drove over a traffic island, parked, and then "bounced 

off the side of the vehicle" when exiting his car. The 

defendant's speech at the time of arrest was "extremely 

slurred," a "strong odor of alcoholic beverage emanated from his 

breath," and his eyes were "bloodshot and glassy." The 

defendant told the arresting trooper that he had drunk "about a 

6 pack of Coors Light and was on his way now to pick up more

beer." There were several cans of beer inside the defendant's

car, one of which was open and had poured out onto the floor in 

front of the driver's seat. The defendant was unable to locate

his registration and failed all four of the field sobriety tests 

the arresting trooper asked him to complete. While being 

transported to the station for booking, the defendant repeatedly 

requested that the officer "just beat him up and drive him 
4

home," and, as he walked into the station, he was "swerving and 

swaying."1 The judge was well within his discretion in finding 

that this evidence against the defendant was "strong." Contrast

Hallinan, 491 Mass. at 750 (reasonable probability defendant 

would not have pleaded guilty without breathalyzer evidence 

where breathalyzer evidence was "crown jewel" of Commonwealth's 

case and only other evidence was brief interaction between 

defendant and officers and defendant's statement that she had 

consumed three drinks at some point).

Furthermore, the defendant received a favorable plea deal. 

At the time of the plea agreement, the defendant had a second 

complaint against him charging him with leaving the scene of 

property damage, G. L. c. 90, § 24 (2) (a), and operating a 

motor vehicle while under the influence of drugs, G. L. c. 90, 

§ 24 (1) (a) (1). The defendant pleaded guilty to all counts of 

both complaints, and the judge sentenced him to six months in a

house of correction, concurrent on all charges, with a 

recommendation that the defendant be held at the Western 

1 The defendant argues that much of the evidence that he was 

intoxicated is consistent with the symptoms of diabetes or 

neuropathy, conditions from which the defendant suffers. He 

identifies this as the defense he would have pursued at trial. 

But the defendant's medical conditions cannot explain, among 

other things, why there was a spilled can of beer on the floor 

in front of him, or why he told the arresting officer that he 

had drunk a six-pack of beer and was on his way to get more.
5

Massachusetts Correctional Addiction Center, a residential 

treatment center. It was well within the judge's discretion to 

believe that, even without the breathalyzer evidence, the 

defendant would have opted for such a favorable plea agreement

rather than risk facing greater criminal sanctions at trial.

Contrast Hallinan, 491 Mass. at 750-751.

By contrast, the defendant relied on his self-serving 

affidavit, in which he stated that he would have taken the case 

to trial had he known the breathalyzer result was inadmissible. 

"The motion judge was not required to credit any claims . . . in 

the defendant's self-serving affidavit." Commonwealth v. 

Gilbert, 94 Mass. App. Ct. 168, 178 (2018). Here, the judge had 

ample reason to discredit the defendant's affidavit.2 

2 The defendant also submitted an affidavit from his plea 

attorney, stating that, if he had known that the breath test 

would have been excluded, that "may have affected [his] advice 

. . . as to whether [the defendant] should accept a plea offer." 

Defense counsel's indecisive statement does not provide 

meaningful support to the defendant's claim. Contrast Hallinan, 

491 Mass. at 751 (reasonable probability established where plea

attorney's affidavit stated that "[h]ad he known . . . the 

breathalyzer test was not admissible, he would have advised the 

defendant to proceed to trial," and defendant's affidavit stated 

that she would have followed his advice).
6

Accordingly, the judge properly denied the defendant's motion to 

withdraw his guilty plea.

Order denying motion to 

withdraw guilty plea 

affirmed.

By the Court (Sacks, 

Ditkoff & Toone, JJ.3),

Clerk

Entered: September 24, 2024.

3 The panelists are listed in order of seniority.