Opinion
21-P-669
11-10-2022
COMMONWEALTH v. DAVID A. CARROLL.
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).
Lemire, Singh & Englander, JJ.
The panelists are listed in order of seniority.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order of a District Court judge denying his motion for a new trial in which he sought to withdraw his guilty pleas to charges of possession with intent to distribute a class D substance and resisting arrest. The defendant contends that he would not have pleaded guilty but for the ineffective assistance of his plea counsel, specifically counsel's failure to adequately investigate the available meritorious defenses, and to advise him of the consequences of his pleas and his right to go to trial. We affirm.
Background.
In May 1999, the defendant pleaded guilty to charges of possession with intent to distribute a class D substance and resisting arrest. The resisting arrest conviction was placed on file and the defendant was sentenced on the remaining charge to nine months in the house of correction, with thirty days to serve and the balance suspended for eighteen months. At the same time, the Commonwealth entered a nolle prosequi on the charge of possession with intent to distribute in a school zone, which carried a mandatory minimum sentence of two years. G. L. c. 94C, § 32J. More than twenty years later, in October 2020, the defendant filed a "motion to vacate" and withdraw his guilty pleas, supported by his own affidavit and that of his postconviction counsel. The defendant averred that his trial attorney advised him to plead guilty without discussing the option of going to trial and that, had he been aware of his right to trial, he would have exercised it. Postconviction counsel represented that trial counsel had no recollection of the defendant's case and no documents relating to it. The defendant argued that he had viable defenses such that it would have made sense to go to trial. After a nonevidentiary hearing, the judge issued a written decision denying the defendant's motion. This appeal followed.
Since the plea judge had retired, another District Court judge heard the motion.
Discussion.
A motion to withdraw a guilty plea, which is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), may be allowed if "it appears that justice may not have been done." Commonwealth v. Scott, 467 Mass. 336, 344 (2014). "[W]e review the denial of a motion for a new trial for 'a significant error of law or other abuse of discretion'" (citation omitted). Commonwealth v. Duart, 477 Mass. 630, 634 (2017), cert. Denied, 138 S.Ct. 1561 (2018).
Where the defendant's motion was premised on ineffective assistance of counsel, he was required to show that the "behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer," likely depriving the defendant of an "otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Here, the defendant claimed that his attorney failed to advise him of his right to go to trial, yet he offered only his own uncorroborated affidavit as support. The judge rejected the affidavit as self-serving, pointing out that the defendant was likely already aware of his right to trial because he had previously tendered a plea in the Juvenile Court, and that even in the same case, he had earlier withdrawn a plea in favor of proceeding to a jury trial.
On appeal, the defendant quarrels with the judge's reasoning, arguing that his plea in Juvenile Court resulted in a continuance without a finding (rather than a guilty plea) and involved a statutory (rather than constitutional) right to a jury trial. Additionally, the defendant argues that the withdrawal of the guilty plea in the instant case, resulting in the scheduling of a jury trial, does not necessarily support the inference that counsel discussed the option of going to trial with the defendant. In so arguing, the defendant overlooks his burden in seeking to overturn a plea entered more than twenty years earlier. Where a contemporaneous record of the plea proceedings is unavailable due to the passage of time, as is the case here, a court will presume the convictions were valid and the proceedings not constitutionally defective unless and until the defendant rebuts this presumption of regularity with sufficient credible and reliable evidence. See Commonwealth v. Lopez, 426 Mass. 657, 661-665 (1998); Commonwealth v. Hoyle, 67 Mass.App.Ct. 10, 14-15 (2006).
Here, the docket indicates that the defendant was advised of his right to a jury trial on two occasions (each time he tendered a plea in the case) and that he waived the right after colloquy each time. See Commonwealth v. McCants, 20 Mass.App.Ct. 294, 297 (1985) ("Docket entries are prima facie evidence of the facts recorded there"). Under the circumstances, the judge was well within her discretion to discredit the defendant's uncorroborated affidavit as self-serving. See Commonwealth v. McWilliams, 473 Mass. 606, 621 (2016). Since the defendant's entire claim of ineffective assistance was premised on his own affidavit, which the judge did not credit, he failed in his burden of establishing that counsel's performance was deficient in any way.
The defendant also failed in his burden of establishing prejudice. In the context of a guilty plea, to satisfy the "prejudice" prong of Saferian, "the defendant has the burden of establishing that 'there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Commonwealth v. Clarke, 460 Mass. 30, 47 (2011), quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). The defendant also must "convince the court that [his] decision to reject the plea bargain would have been rational under the circumstances" (citation omitted). Clarke, supra.
In support of the prejudice prong, the defendant argued that, had he been aware of his right to go to trial, he would have exercised it because it appeared that the Commonwealth would be unable to meet its burden of proving the elements of the crimes at trial. Yet, the defendant's assessment of the strength of the Commonwealth's case was premised upon allegations in a police report supporting the defendant's arrest. There is no indication that the Commonwealth could not have met its burden through evidence and testimony developed at trial. Moreover, as the motion judge noted, the defendant failed to address the fact that at trial, he would have been facing a school zone charge entailing a minimum mandatory two- year sentence. The defendant provided no rational explanation for why, at the age of seventeen, he would have taken his chances at trial and risked exposure to a lengthy sentence rather than plead guilty and serve a substantially shortened sentence. The defendant therefore failed to establish prejudice.
The motion judge was within her discretion in denying the defendant's motion to withdraw his guilty pleas, as the defendant had failed to meet his burden of establishing ineffective assistance of plea counsel.
The defendant's failure to establish ineffective assistance of plea counsel also disposes of his claim that he did not enter his guilty pleas knowingly, voluntarily, and intelligently. See Commonwealth v. Furr, 454 Mass. 101, 106 (2009) (due process requires that guilty plea be made intelligently and voluntarily).
Order denying motion to withdraw guilty pleas and for a new trial affirmed.