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 

1 The 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 
2

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.
3

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. 
4

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.
5

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, 
6

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 
7

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 
8

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 
9

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.