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13-P-1735 Appeals Court

COMMONWEALTH vs. FRANCISCO L. UBEIRA-GONZALEZ.

No. 13-P-1735.

Hampden. October 2, 2014. - January 22, 2015.

Present: Grasso, Kantrowitz, & Meade, JJ.

Controlled Substances. Constitutional Law, Plea, Conduct of 

government agents. Due Process of Law, Plea. Evidence, 

Guilty plea. Practice, Criminal, Plea, Conduct of 

government agents, Assistance of counsel.

Complaints received and sworn to in the Holyoke Division of 

the District Court Department on October 19 and November 4, 

2009.

Motions for a new trial, filed on March 27, 2013, were

heard by Philip A. Beattie, J.

Jane Davidson Montori, Assistant District Attorney, for the 

Commonwealth.

Daniel J. Ciccariello for the defendant.

MEADE, J. In 2010, the defendant pleaded guilty to several 

crimes, including possession of a class A controlled substance
2

with the intent to distribute.1 In 2012, the defendant was 

charged in Federal court with distribution of a controlled 

substance. Following his arraignment in Federal court, the 

defendant moved to withdraw his 2010 guilty pleas to his State 

convictions. The defendant's motions were based on alleged 

misconduct by an assistant analyst at the State laboratory in 

Amherst (Amherst laboratory). Without conducting an evidentiary 

hearing or making findings, the motion judge (who was also the 

plea judge) allowed the defendant's motions. The Commonwealth 

appeals and claims the judge erred by allowing the motions. We 

agree and reverse.

1. Background. a. Procedural history. In October of 

2009, the defendant was charged with possession of a class A 

controlled substance (October case). Less than one month later, 

in November of 2009, the defendant was again charged with 

possession of a class A controlled substance, possession with 

intent to distribute a class A controlled substance, resisting 

arrest, and assault and battery on a police officer (November 

case). In February of 2010, the defendant pleaded guilty to the 

above charges, except for the possession of a class A controlled 

substance charge in the November case, which the Commonwealth 

dismissed.

 

1 The pleas were entered in two Holyoke District Court 

cases: docket no. 0917CR003063 and docket no. 0917CR003249.
3

In May of 2012, the defendant was charged in the United 

States District Court for the District of Massachusetts with 

distribution of a controlled substance. In March of 2013, the 

defendant moved to withdraw his guilty pleas in the October and 

November cases. In his affidavits in support of the motions, 

the defendant claimed that his guilty pleas were not made 

intelligently and voluntarily because he and his attorney were 

not aware of the alleged misconduct of Sonja Farak, an assistant 

analyst at the Amherst laboratory who analyzed the narcotics in 

the October case. The defendant also claimed that he was not 

shown the certificate of drug analysis (drug certificate) in 

either case. However, at the time of his guilty pleas, a drug 

analysis had yet to be performed on the narcotics from the 

November case and the defendant instead stipulated that the 206 

unanalyzed packets contained heroin.2 Nonetheless, in his 

affidavit in support of his motion for new trial in the November 

case, the defendant claimed "the analyst of the evidence in my 

case has engaged in material misconduct . . . and thus place[s] 

the validity of the evidence in my case in serious doubt." 

After a nonevidentiary hearing, the judge allowed each motion 

with an endorsement.

 

2 In his affidavits in support of the motions to withdraw 

his guilty pleas, the defendant claimed he "was advised that the 

Commonwealth had established beyond a reasonable doubt that the 

substance was heroin and that [he] should accept the plea 

recommendation."
4

b. Crimes. In the October case, the defendant was a 

passenger in a car that was stopped for a civil infraction. He 

was not wearing a seat belt. When the police officers 

ascertained the defendant's identity in order to issue him a 

citation, they discovered an outstanding warrant for his arrest. 

During an inventory of his possessions at the police station, an 

officer found four glassine bags of heroin in the defendant's

sock. As stated above, the heroin was analyzed at the Amherst 

laboratory on December 21, 2009, by Farak.

In the November case, the police approached and spoke to 

the defendant, who was standing on a Holyoke street corner. A 

State trooper who was present recognized the defendant as 

someone with whom he had had "contact" several days earlier. An 

inquiry to the warrants management system revealed an 

outstanding arrest warrant for the defendant. When the trooper 

attempted to handcuff the defendant, the defendant struck the 

trooper in the face and attempted to flee. A violent struggle 

ensued and continued until backup officers arrived and 

handcuffed the defendant. After the defendant was transported 

to the police station, 206 packets of heroin were found on the 

seat of the police cruiser. At booking, the police recovered 

$1,308 from the defendant.

c. Laboratory misconduct. Attached to the Commonwealth's 

opposition to the defendant's motions were two police reports. 
5

According to one report, on January 18, 2013, the State police 

began an investigation of the Amherst laboratory, which focused 

on Farak. That investigation revealed Farak's mishandling of 

drug samples, improper storage of drug samples, and a belief 

that Farak had been removing narcotics from samples she had 

tested and replacing them with counterfeit substances. We take 

judicial notice of the fact that on January 6, 2014, Farak 

pleaded guilty to four counts of theft of a controlled substance 

from an authorized dispensary, four counts of tampering with 

evidence, and two counts of possession of a controlled 

substance.

3

2. Discussion. "A plea of guilty and the ensuing 

conviction comprehend all of the factual and legal elements 

necessary to sustain a binding, final judgment of guilt and a 

lawful sentence." United States v. Broce, 488 U.S. 563, 569 

(1989). "A motion to withdraw a guilty plea is treated as a 

motion for a new trial under Mass.R.Crim.P. 30(b), as appearing 

in 435 Mass. 1501 (2001)." Commonwealth v. Furr, 454 Mass. 101, 

106 (2009). "A strong policy of finality limits the grant of 

new trial motions to exceptional situations, and such motions 

should not be allowed lightly." Commonwealth v. Gordon, 82 

Mass. App. Ct. 389, 394 (2012). See Commonwealth v. Lopez, 426 

 

3 We may take judicial notice of court records in related 

proceedings. Jarosz v. Palmer, 436 Mass. 526, 530 (2002). See 

Mass. G. Evid. § 201(b)(2) (2014).
6

Mass. 657, 662-663 (1998). Nonetheless, "[u]nder 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 new 

trial is thus committed to the sound discretion of the judge." 

Commonwealth v. Scott, 467 Mass. 336, 344 (2014). See 

Commonwealth v. Hunt, 73 Mass. App. Ct. 616, 619 (2009).

Here, the Commonwealth claims the judge erred by granting 

the defendant's motions to withdraw his guilty pleas without 

holding an evidentiary hearing. The Commonwealth further claims 

that the motions should have been denied without an evidentiary 

hearing where the defendant failed to demonstrate that any 

laboratory misconduct affected his two cases or that plea 

counsel was ineffective. We agree with both claims.

a. Laboratory misconduct. We begin by noting that the 

judge had the discretion to deny the motions based on the 

defendant's affidavits. See Commonwealth v. Stewart, 383 Mass. 

253, 257 (1981). Indeed, "[t]he judge may rule on the issue or 

issues presented by such motion on the basis of the facts 

alleged in the affidavits without further hearing if no 

substantial issue is raised by the motion or affidavits." 

Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1502 (2001). 

However, as in Commonwealth v. Gordon, supra, the judge in this 

case took the remarkable step of granting the motions without 

holding an evidentiary hearing. Indeed "[a] judge's power to 
7

grant such a motion on the papers is more circumscribed." Ibid. 

If a judge is inclined to grant such a motion, he or she must 

first conclude that it raises a substantial issue which would 

necessitate an evidentiary hearing.4 See Commonwealth v. 

Stewart, supra. See also Mass.R.Crim.P. 30(c)(3). At the very 

least, "[h]olding an evidentiary hearing provides the 

Commonwealth the opportunity to challenge the evidence presented 

in the affidavits." Commonwealth v. Gordon, supra at 395. See 

Commonwealth v. Almonte, 84 Mass. App. Ct. 735, 738 (2014), 

quoting from Reporters' Notes to Rule 30(c)(3), Mass. Ann. Laws 

Court Rules, Rules of Criminal Procedure, at 1662 (LexisNexis 

2013-2014) (when a substantial issue arises, "the established 

'better practice' has been to conduct an evidentiary hearing").

Furthermore, the defendant "bears the burden of proof on a 

motion for a new trial," Commonwealth v. Marinho, 464 Mass. 115, 

123 (2013), and it is the defendant's burden to prove facts that 

are "neither agreed upon nor apparent on the face of the 

record." Commonwealth v. Comita, 441 Mass. 86, 93 (2004), 

quoting from Commonwealth v. Bernier, 359 Mass. 13, 15 (1971). 

See Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 637 (2001)

 

4 We do not hold that a motion for new trial may never be 

granted without an evidentiary hearing. If the substantial 

issue raised by the motion is solely a question of law based on 

undisputed facts, an evidentiary hearing may not be necessary. 

Commonwealth v. Gordon, supra at 395. But if the motion does 

not raise a substantial issue, neither holding an evidentiary 

hearing nor granting relief is appropriate.
8

("The defendant has the burden of producing a credible reason to 

reverse the final decision, arrived at after trial or plea, that 

outweighs the risk of prejudice to the Commonwealth").

When a defendant pleads guilty, "two constitutional 

requirements are necessary to assure that a counseled plea is 

valid: the defendant's choice must be voluntary and 

intelligent." Commonwealth v. Hunt, 73 Mass. App. Ct. at 619. 

See Tollett v. Henderson, 411 U.S. 258, 267 (1973); Bousley v. 

United States, 523 U.S. 614, 618 (1998). Here, the defendant 

did not take issue with his plea colloquies, his understanding 

of the nature of the charges, or the consequences of the pleas. 

Rather, he claimed that his guilty pleas were not intelligent 

and voluntary due to Farak's alleged malfeasance, which came to 

light in 2013.

The only support for the defendant's motions to withdraw 

his guilty pleas were his own self-serving affidavits. In those

affidavits, the defendant claimed he was not shown the drug 

certificates by his counsel. He also averred that his counsel 

advised him that the identity of the substances (as an element 

of the crime) was not in doubt, and that the substances had been 

established to be heroin. The defendant's motions were not 

accompanied by any drug certificate. However, the 

Commonwealth's opposition did provide a certificate for the 

October case, which revealed the assistant analyst to be Farak. 
9

The defendant submitted nothing relative to the analysis of the 

substance in the November case.

In this posture, there was no support for any claimed 

laboratory misconduct involving the defendant's November case 

for possession with intent to distribute a class A controlled 

substance. Indeed, there is no evidence that the 206 packets 

had even been analyzed before the defendant stipulated that they 

contained heroin when he pleaded guilty. That guilty plea was 

more than a mere admission. See Brady v. United States, 397 

U.S. 742, 748 (1970). See also Boykin v. Alabama, 395 U.S. 238, 

242 n.4 (1969) ("A plea of guilty is more than a voluntary 

confession made in open court. It also serves as a stipulation 

that no proof by the prosecution need be advanced . . . . It 

supplies both evidence and verdict, ending controversy"

[citation omitted]). Thus, there was no evidence of 

governmental misconduct involving the November case which could 

have created a substantial issue for the judge to address.5 See 

 

5 In his November case, the defendant also pleaded guilty to 

resisting arrest (the lead count in the complaint) and assault 

and battery on a police officer. Even though the defendant's 

motion, affidavit, and supporting memorandum of law for the 

November case made no claim relative to the invalidity of those 

pleas, the judge granted a new trial on those convictions as 

well. Having not been raised in his motion for new trial, any 

argument relative to those convictions should have been viewed 

as waived. See Mass.R.Crim.P. 30(c)(2), as appearing in 435 

Mass. 1501 (2001). Moreover, the defendant has also made no 

argument in his brief to this court or at oral argument as to 

how Farak's misconduct tainted those convictions. To the extent 
10

Commonwealth v. Gordon, 82 Mass. App. Ct. at 395-396, quoting 

from Reporters' Notes to Rule 30(c)(3), Mass. Ann. Laws Court 

Rules, Rules of Criminal Procedure, at 1641 (2011-2012) ("In 

determining whether the motion raises a substantial issue which 

merits an evidentiary hearing, the judge should look not only at 

the seriousness of the issue asserted, but also to the adequacy 

of the defendant's showing").

The October case stands on a different footing because 

Farak was the assistant analyst for the possession of heroin 

charge. But that fact alone does not end the matter. To 

evaluate the propriety of the judge granting the motion in the 

October case, we utilize the United States Court of Appeals for 

the First Circuit's analysis in Ferrara v. United States, 456 

F.3d 278, 290 (1st Cir. 2006), which has been adopted by the 

Supreme Judicial Court in Commonwealth v. Scott, 467 Mass. at

346.

"Under the Ferrara analysis, the defendant first must show 

that egregious government misconduct preceded the entry of his 

 

the claims are not waived, we are at a loss, especially without 

findings from the judge, to conjure any justification for the 

grant of a new trial on these convictions. Allowing a motion 

for new trial without making findings runs afoul of 

Mass.R.Crim.P. 30(b), which states that the judge "shall make 

such findings of fact as are necessary to resolve the 

defendant's allegations of error of law" (emphasis supplied). 

See Commonwealth v. Almonte, 84 Mass. App. Ct. at 739. In 

contrast, a one-word ruling labors "under suspicion of 

arbitrariness." Id. at 740.
11

guilty plea and that it is the sort of conduct that implicates 

the defendant's due process rights." Id. at 347. See Ferrara

v. United States, supra at 290, 291. This requires more than a 

defendant simply misjudging the Commonwealth's case, but rather

he must show that his "guilty plea was preceded by 'particularly 

pernicious' government misconduct that was the source of the 

defendant's misapprehension of some aspect of his case." 

Commonwealth v. Scott, supra at 347, quoting from Ferrara v. 

United States, supra at 291.

There can be no question that Farak's removal of narcotics 

from samples she had tested and replacing them with counterfeit 

substances constituted "egregious misconduct" by the government. 

Although Farak's motives and the scale of her misconduct on this 

record differed from that of Annie Dookhan's in the Hinton 

laboratory cases, see Commonwealth v. Scott, supra at 337 & n.3, 

Farak's conduct nonetheless caused damage to the criminal 

justice process. Also, like Dookhan, Farak was a government 

agent. See id. at 348-350. But the similarities end there. 

Under the first prong of the Ferrara analysis, a defendant "must 

demonstrate that the misconduct occurred in his case." Id. at 

350. In other words, "a defendant seeking to vacate a guilty 

plea under Mass.R.Crim.P. 30(b), on the ground that government 

misconduct rendered the plea involuntary, . . . is required to 
12

show a nexus between the government misconduct and the 

defendant's own case." Id. at 351.6

Here, the defendant offered no evidence indicating that 

Farak's misconduct occurred before the defendant's guilty plea. 

The only evidence on this point appears in a police report 

appended to the Commonwealth's memorandum in opposition to the 

defendant's motion, and it indicates that Farak's misconduct 

occurred in 2013 -- more than three years after Farak analyzed 

the heroin in the defendant's case. In other words, under the 

Ferrara analysis, the defendant failed to make the preliminary 

showing that the "egregious government misconduct preceded the 

entry of his guilty plea." Commonwealth v. Scott, 467 Mass. at 

347 (emphasis supplied).7 The defendant's claim that the 

Commonwealth failed to provide the judge with any evidence that 

 

6 In Commonwealth v. Scott, 467 Mass. at 352, for cases 

where Dookhan was the analyst, the Supreme Judicial Court 

created a "conclusive presumption that egregious government 

misconduct occurred in the defendant's case." The court 

emphasized that the rule was "sui generis." Id. at 353. In 

cases where Dookhan was not the analyst, the defendant is not 

relieved of his burden to establish each element of the Ferrara

analysis. See id. at 354.

7 The defendant also claims the revelation of Farak's 

misconduct constituted newly discovered evidence. While this 

may be true, it did not cast any real doubt on the justice of 

the defendant's conviction where he failed to show Farak's 

misconduct occurred in his case. See Commonwealth v. Pike, 431 

Mass. 212, 218 (2000) ("A defendant seeking a new trial on the 

basis of newly discovered evidence must establish both that the 

evidence is newly discovered and that it casts real doubt on the 

justice of the conviction").
13

Farak's misconduct did not precede the defendant's guilty pleas

misperceives the burden of proof. It is the defendant who bears 

the burden of proof on a motion for new trial. See Commonwealth

v. Marinho, 464 Mass. at 123. See also Commonwealth v. Chatman, 

466 Mass. 327, 333 (2013) ("The defendant has the burden of 

proving facts upon which he relies in support of his motion for 

a new trial"). Due to the defendant's failure to sustain his 

burden of proof, his claim fails under the first prong of the 

Ferrara analysis. Given this result, we need not address the 

second prong of the Ferrara analysis.8

b. Assistance of counsel. The Commonwealth also claims 

that the defendant failed to sustain his burden of proving that 

 

8 Under the second prong of the Ferrara analysis, a 

defendant must demonstrate a reasonable probability that he 

would not have pleaded guilty had he known of the government's 

misconduct. Commonwealth v. Scott, 467 Mass. at 354-355. See 

Ferrara v. United States, 456 F.3d at 290, 294. It is 

significant that the defendant did not aver this in his 

affidavit; an averment the Supreme Judicial Court has described 

as a "minimum" for establishing prejudice. Commonwealth v. 

Scott, supra at 356. We further note the favorable disposition 

the defendant received. In the November case, the defendant was 

sentenced to one year in the house of correction on each 

conviction: resisting arrest, assault and battery on a police 

officer, and possession of a class A controlled substance with 

the intent to distribute. In the October case, the defendant 

was sentenced to sixty days in the house of correction on his 

conviction of possession of a class A controlled substance. All 

sentences were to be served concurrently. In addition, the 

defendant was given credit for the 111 days during which he was 

held for trial. With this disposition in mind, under the second 

prong, the defendant would have had to "convince the court that 

a decision to reject the plea bargain would have been rational 

under the circumstances." Ibid., quoting from Commonwealth v. 

Clarke, 460 Mass. 30, 47 (2011).
14

plea counsel was ineffective. Specifically, the defendant 

claimed that counsel faltered by allowing him to plead guilty 

without having a drug certificate in the November case.

Ineffective assistance of counsel requires "behavior of 

counsel falling measurably below that which might be expected

from an ordinary fallible lawyer," which "likely deprived the 

defendant of an otherwise available, substantial ground of 

defen[s]e." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). 

The defendant must demonstrate that "better work might have 

accomplished something material for the defense." Commonwealth

v. Satterfield, 373 Mass. 109, 115 (1977).

The defendant's motion and affidavit did not provide any 

evidence, or even suggest, that at the time he pleaded guilty, 

his attorney was aware of any misconduct at the Amherst 

laboratory. In fact, Farak's misconduct did not come to light 

until several years after the defendant pleaded guilty. Because 

we must evaluate counsel's conduct based on what was known at

the time,9 see Strickland v. Washington, 466 U.S. 668, 689 

(1984), we cannot say that his attorney's choice to proceed with 

the pleas based on what he knew (even without a drug analyst's 

certificate) called into question his performance on an 

actionable level. Indeed, it is not as if the defendant was 

 

9 The defendant's motions were not supported with an 

affidavit from his attorney.
15

without personal knowledge of the contents of the 206 packets at 

issue. As such, the defendant's claim fails to establish the 

first prong of the Saferian test, and we need go no further.10

Orders granting motions for

 new trial reversed.

 

10 Relative to prejudice, we note only that the Ferrara

"reasonable probability" standard "mirrors our formulation of 

the test for prejudice in cases in which a defendant claims that 

counsel's ineffective assistance induced the defendant to plead 

guilty." Commonwealth v. Scott, 467 Mass. at 356. This, as 

stated above, includes at a minimum the defendant's averment 

(absent here) that he would not have pleaded guilty had he known 

of the misconduct at issue. See note 8, supra.