Date: 12-19-2015

Case Style: Commonwealth v. Armstrong

Case Number: 14-P-1538

Judge: Gregory Massing

Court: Massachusetts Supreme Judicial Court

Plaintiff's Attorney: Erin J. Anderson

Defendant's Attorney: Judith Ellen Pietras

Description: The defendant, Edward Armstrong, appeals from
the order denying his motion for new trial under Mass.R.Crim.P.
30(b), as appearing in 435 Mass. 1501 (2001). The defendant
alleged in his motion that his guilty plea eight years earlier
to a charge of armed home invasion was invalid for lack of a
factual basis, contrary to the requirements of Commonwealth v.
Hart, 467 Mass. 322, 325-326 (2014), and Mass.R.Crim.P.
12(c)(5)(A), as appearing in 442 Mass. 1511 (2004).
Specifically, he claimed that the plea colloquy failed to
establish a factual basis for one of the elements of the crime
of armed home invasion: that having entered an empty dwelling,
he "remain[ed] in such dwelling place knowing or having reason
to know that one or more persons are present." G. L. c. 265,
§ 18C, inserted by St. 1993, c. 333. A Superior Court judge
(motion judge) denied the motion without a hearing. Discerning
no abuse of discretion or other error of law, see Commonwealth
v. Kirwan, 448 Mass. 304, 314 (2007), we affirm.
Background. On September 27, 2006, the defendant pleaded
guilty to a five-count indictment charging him with, among other
things, armed home invasion. At the same time, he pleaded
guilty to three counts in two 2005 indictments arising out of
two prior incidents. With respect to one of the prior
incidents, the plea judge sentenced the defendant to a State
prison term of five to six years on a conviction of assault and
battery by means of a dangerous weapon (ABDW), imposed on a
"forthwith" basis. G. L. c. 279, § 27. The judge imposed State
prison sentences of four to five years with respect to two of
the convictions associated with the 2006 armed home invasion
(assault by means of a dangerous weapon and possession of a

3
firearm without a license), these sentences to run concurrently
with each other and with the forthwith sentence for ABDW.
With respect to the armed home invasion guilty plea,
although the statutory sentencing range is "imprisonment in the
state prison for life or for any term of not less than twenty
years," G. L. c. 265, § 18C, the judge sentenced the defendant
to a term of probation,1 to commence after completion of the
three concurrent State prison sentences. The remaining charges,
including a charge of receiving a stolen motor vehicle
associated with the home invasion incident, were placed on file
with the defendant's consent.
In July, 2012, while serving his probationary term for the
2006 armed home invasion conviction, the defendant was indicted
on a new charge of home invasion as well as armed robbery and
other crimes. The plea judge having retired, on April 26, 2013,
a second Superior Court judge found the defendant in violation
of the terms of his probation based on the new charges. The
judge removed from the file the 2006 associated conviction of
receiving a stolen motor vehicle and sentenced the defendant to
a State prison term of seven to nine years on that charge. The
judge continued the defendant's probation on the 2006 home
1 Although the minimum State prison term that may be imposed on a conviction of armed home invasion is twenty years, a term of probation is a legal disposition. Commonwealth v. Zapata, 455 Mass. 530, 534-536 (2009).

4
invasion conviction for another five years, to commence after
completion of the sentence for receiving a stolen motor vehicle.
On May 22, 2013, after a jury trial, the defendant was acquitted
on the 2012 indictments.
On June 5, 2014, the defendant filed his motion for a new
trial under rule 30(b), alleging for the first time that his
2006 guilty plea to the charge of armed home invasion was
invalid because the Commonwealth failed to lay a factual basis
for the charge during the colloquy. The motion judge denied the
motion on September 22, 2014.
Discussion. Rule 12(c)(5)(A) of the Massachusetts Rules of
Criminal Procedure provides, "A judge shall not accept a plea of
guilty unless the judge is satisfied that there is a factual
basis for the charge." The factual basis requirement is
distinct from the requirement that a defendant's plea be made
voluntarily and intelligently. See Commonwealth v. Hart, 467
Mass. at 325-326. The intelligence requirement focuses on the
defendant's understanding of the charges to which he is pleading
guilty. See Henderson v. Morgan, 426 U.S. 637, 645 & n.13
(1976); Commonwealth v. Colantoni, 396 Mass. 672, 679-680
(1986). The factual basis requirement, by contrast, focuses on
the judge being satisfied that the defendant is not pleading
guilty to a crime unless there is a "strong factual basis" for
the charge. Commonwealth v. DelVerde, 398 Mass. 288, 297

5
(1986), quoting from North Carolina v. Alford, 400 U.S. 25, 37
38 (1970). See Commonwealth v. Jones, 60 Mass. App. Ct. 88, 90
n.2 (2003).
"A judge may not accept a guilty plea 'unless there are
sufficient facts on the record to establish each element of the
offense.'" Hart, supra at 325, quoting from DelVerde, supra.
However, by pleading guilty, a defendant waives his right to be
convicted on proof beyond a reasonable doubt. DelVerde, supra
at 292. Therefore, the factual basis for a guilty plea need not
satisfy the standard of review for the denial of a motion for a
required finding of not guilty set forth in Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979), that is, whether "any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt" (citation omitted).
Accordingly, a judge accepting a guilty plea "is not
required to determine whether the defendant is or is not guilty
of the offense charged." Commonwealth v. Jenner, 24 Mass. App.
Ct. 763, 773 (1987). Rather, a plea judge "need determine only
whether the evidence which he had heard, plus any information he
has obtained in the plea hearing, is sufficient, when considered
with reasonable inferences which may be drawn therefrom, to
support the charge to which the defendant is offering a plea of
guilty." Ibid.

6
As pertinent here, the crime of armed home invasion applies
when a defendant "knowingly enters the dwelling place of another
and remains in such dwelling place knowing or having reason to
know that one or more persons are present." G. L. c. 265,
§ 18C. The parties have not cited any published cases, nor are
we aware of any, in which the statute has been applied to a
defendant who unlawfully entered an empty dwelling and remained
there after learning that the resident had returned. The most
definitive attempt to define the "remains" element appears in
Commonwealth v. Ruiz, 426 Mass. 391, 393 (1998), in which the
court in dicta posited that "the Commonwealth would have to
establish that, some appreciable time prior to the assault, the
defendant remained there, and presumably could have chosen to
depart, after coming to know or have reason to know that others
were in the dwelling house."
Here, according to the prosecutor's recitation of the facts
and the reasonable inferences therefrom, the defendant, armed
with a loaded .380 caliber Smith & Wesson semiautomatic pistol,
entered an empty home in Framingham. The resident returned home
at 2:30 A.M. Upon arrival, he climbed the stairs to the second
floor, where his bedroom was located. When he reached the top
of the stairs, he saw the defendant standing in the hallway. In
a subsequent statement to the police, the defendant claimed that
he had entered the dwelling to find a place to sleep, and that

7
he was looking for the basement when the resident found him on
the second floor.
The defendant walked toward the resident and asked, "Where
is Tony?" The Commonwealth argues that at this point the
defendant had remained in the dwelling for a sufficiently
"appreciable" amount of time, ibid., knowing the resident had
returned, to provide a factual basis for the guilty plea. We
agree. The information available to the plea judge provided a
strong factual basis for accepting the defendant's guilty plea,
unlike the plea proceeding in Hart, 467 Mass. at 328, in which
"the necessary facts [were] completely absent."
The defendant argues that he did not remain in the home for
a sufficiently appreciable time period to establish a factual
basis for his guilty plea because when he came face-to-face with
the resident, he attempted to leave but the resident prevented
him from doing so. Indeed, the prosecutor's recitation
continued, stating that the resident, when asked, "Where is
Tony?," "grabbed the defendant, trying to get out of the house."
The defendant responded by brandishing his firearm and pointing
it at the resident. The resident then released him, and the
defendant ran downstairs and out of the house.
We decline to recognize, at least in the context of
reviewing the factual basis of a guilty plea, this sort of
reverse "castle" defense. See Commonwealth v. Carlino, 449

8
Mass. 71, 75 (2007). An armed intruder in a dwelling does not
have the privilege to assault the resident with a firearm to
effectuate the intruder's retreat in order to negate the element
of remaining after acquiring knowledge of the resident's return.
"The [armed home invasion] statute is clearly designed to
protect occupants of a dwelling from the kind of incident that
occurred here -- entry by an armed person who, once inside,
assaults and traumatizes the occupants by attacking them with a
[weapon]." Commonwealth v. Mahar, 430 Mass. 643, 651 (2000).
Conclusion. Relief under rule 30(b) is "limited to cases
where 'it appears that justice may not have been done.'"
Commonwealth v. Lopez, 426 Mass. 657, 662 (1998), quoting from
Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992). The strict
standard is particularly applicable where, as here, the
defendant receives a favorable sentence and does not challenge
his plea for eight years, "only to seek to withdraw the plea
later when adverse consequences appear."

Outcome: The motion judge did not abuse her discretion in denying the
defendant's motion. Order denying motion for new trial affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: