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Commonwealth v. Berrios9/16/2005
ne to trial. Ibid. The plea was properly invalidated. Ibid.
The judge's findings in this case do not distinguish, on the one hand, between the pressures inherent on the defendant, who was (by hypothesis) faced with a strong case against him, and on the other hand, the pressures arising from the conduct of counsel or family members that could actually overwhelm the defendant's will. A painful rational choice to plead in the face of strong evidence is nonetheless a choice. But circumstances can be created that undermine the ability of a defendant to actually exercise his will to make a choice. See, e.g., Commonwealth v. Huot, supra at 97; Colson v. Smith, supra at 1081. That distinction was not made by the judge in his findings.
In view of our conclusion, however, that the defendant's plea was not intelligently or knowingly made due to the ineffective assistance of counsel, there is no need to remand the matter for further factual findings on the issue of voluntariness.
V. Prejudice to the Commonwealth
A factor that must be considered in the decision whether to grant a motion for a new trial is the passage of time and whether the Commonwealth's interest in the fair and effective administration of justice will be adversely affected. See Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 637-638 (2001), and cases cited. The Commonwealth presented no evidence or arguments at the hearing relating to its inability to proceed to trial on this indictment. All of the witnesses who might testify to the defendant's alleged criminal role in the matter were participants in the event and were sentenced to terms of imprisonment which do not appear to have expired. Furthermore the defendant has been vigorous in attacking his plea and, as the judge found, the delay in reaching this stage cannot be attributed to him. See note 4, supra.
Conclusion
For the reasons stated above the order allowing the motion for new trial is affirmed.
So ordered.
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