Opinion
No. 12–P–758.
2013-05-14
COMMONWEALTH v. James M. BOWEN.
By the Court (COHEN, SIKORA & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 24, 2001, after pleading guilty to six counts of aggravated rape, the defendant received a sentence of eight to ten years in prison, followed by a probationary term. On July 21, 2003, the defendant filed his first motion for a new trial, seeking to withdraw his plea on the ground that it was not voluntarily made. That motion was not successful. The present appeal is from the plea judge's denial, without a hearing, of the defendant's second motion for a new trial, which he brought pro se, claiming that his plea was entered as a result of the ineffective assistance of plea counsel.
See Commonwealth v. Bowen, 63 Mass.App.Ct. 579 (2005), reversing the plea judge's allowance of the defendant's first motion for a new trial and remanding the matter for findings after an evidentiary hearing; and Commonwealth v. Bowen, 71 Mass.App.Ct. 1110 (2008) (memorandum and order pursuant to rule 1:28), affirming the denial, after remand, of the defendant's first motion for a new trial.
The defendant generally contends, as he did in his first motion for a new trial, that his plea was coerced because counsel told him that the judge had stated during a lobby conference that the defendant would receive a sentence of twenty-five to thirty years in prison if he were to be convicted after a trial. What distinguishes the second motion from the first is that, in the first motion, the defendant asserted that the judge, in fact, had made this statement, while the defendant now contends that his counsel falsely told him that the judge had done so. When seeking to withdraw a guilty plea based upon alleged ineffective assistance of counsel, the defendant bears the burden to show that counsel's conduct fell below that which might be expected from an ordinary fallible lawyer and that such conduct prejudiced the defendant by depriving him of an otherwise available, substantial ground of defense. See Commonwealth v. Yardley Y., 464 Mass. 223, 230 (2013), and cases cited. Here, the defendant has not carried his burden as to either prong.
The defendant claims that he did not know that counsel had “lied” to him until after the hearing on his first motion for a new trial.
Insofar as counsel's performance is concerned, the judge was not required to accept the defendant's claim that counsel had fabricated a threat to coerce the defendant into pleading guilty. That claim directly contradicts the defendant's professions under oath at the time of plea, and is predicated on his own self-serving affidavit, which the judge was entitled to reject as lacking credibility. See Commonwealth v. Hiskin, 68 Mass.App.Ct. 633, 640 (2007).
At the hearing on the defendant's first motion for a new trial, the judge expressed “serious doubts” that plea counsel and the defendant ever had the conversation in question.
Insofar as prejudice is concerned, the defendant was required not only to allege that he would not have accepted the plea bargain, but also to demonstrate that such a decision would have been rational under the circumstances. See Commonwealth v. Clarke, 460 Mass. 30, 47 (2011). Here, the defendant has not argued, much less shown, that it would have been rational for him to forgo the plea. The record reveals that the defendant, who had a prior criminal record, was charged with six counts of a felony carrying a maximum penalty of life imprisonment, and that the Commonwealth's case was based not only on the testimony of the victim and others, but also upon videotapes depicting the conduct in question. Thus, irrespective of what he claims to have been told by counsel, the defendant faced a palpable risk of conviction and of receiving a longer sentence than the one he obtained as a result of his plea.
Order denying motion for a new trial affirmed.