Opinion
13-P-1360
02-20-2015
COMMONWEALTH v. ANTONIO O. DIAS, JR.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On November 8, 1996, the defendant entered guilty pleas to various charges arising from crimes committed in 1992, 1994, and 1995. Since his pleas, he has attempted unsuccessfully to withdraw them by filing six separate motions for a new trial.
As best as we can understand the record, in his first motion, the defendant alleged, among other claims, that his pleas were not made intelligently or voluntarily and were the product of undue pressure stemming from the fact that he had been held in detention for ten days prior to the plea hearing and had no information about his cases. He also claimed that his counsel provided him with ineffective assistance for various reasons including failing to properly advise him that he could be deported as a result of pleading guilty. Following a nonevidentiary hearing, the motion was denied by the plea judge. The judge issued written findings and rulings rejecting the defendant's claims. The defendant did not appeal. Instead, he filed three subsequent new trial motions raising similar issues regarding the validity of his guilty pleas. These motions were denied by different judges of the District Court. The defendant did not appeal from the orders denying his second and third motions, but did appeal from the order denying his fourth motion, which this court affirmed in an unpublished memorandum and order pursuant to our rule 1:28. See Commonwealth v. Dias, 83 Mass. App. Ct. 1124 (2013). Shortly thereafter, the defendant filed two additional motions seeking to withdraw his guilty pleas and for a new trial, both of which were denied. The defendant's appeal from both orders is now before us.
At some point after the defendant served his sentence, he was deported to Portugal.
The judge specifically found that the defendant did not receive ineffective assistance of counsel, was twice given alien warnings, and knew that pleading guilty might have implications for his immigration status. The judge further concluded that, on the latter point, any indication by the defendant's attorney to the contrary could have had no prejudicial impact.
The panel concluded that the denial of the defendant's fourth motion for new trial was not an abuse of discretion by the judge, who permissibly decided not to credit the defendant's assertion that his guilty pleas were the product of duress and that a presumption of regularity defeated the defendant's jurisdictional claim.
The doctrine of direct estoppel bars several of the defendant's claims. See Commonwealth v. Rodriguez, 443 Mass. 707, 709-710 (2005). The defendant's assertions that his guilty pleas were the product of duress, that the plea judge failed to give alien warnings, and that he received ineffective assistance of plea counsel on the grounds that counsel was inadequately prepared; did not advise the defendant regarding available motions to suppress, motions to dismiss, and defenses; and did not apprise the defendant of possible deportation consequences of a guilty plea, were "actually litigated" and decided in favor of the Commonwealth. Id. at 710. Accordingly, we do not consider these claims.
The defendant's remaining claims are raised for the first time in his fifth and sixth motions for a new trial and in this appeal. Consequently, they are waived and we consider them only to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002). The defendant contends that the Commonwealth failed to conduct pretrial conferences with respect to some of his cases, his plea colloquy was inadequate, plea counsel informed him that he had no right to appeal and failed to file a notice of appeal, the absence of a transcript of the plea hearing prohibited the defendant from effectively litigating his claims on appeal, and his appellate lawyers provided ineffective assistance.
In his sixth motion for new trial the defendant also asserts that the Commonwealth failed to provide him exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and Mass.R.Crim.P. 14(a), as amended, 444 Mass. 1501 (2005), but does not press this argument on appeal.
As an initial matter, we note that the defendant made no effort to reconstruct the record of the proceedings even though he was informed in 1998 that the plea hearing had not been recorded. In these circumstances, the absence of a record is attributable to the defendant. Contrast Commonwealth v. Lopez, 426 Mass. 657, 660-661 (1998). As the Commonwealth observes similarly in its brief, the defendant cannot meet his burden of producing a "credible reason [to withdraw his pleas that] outweighs the risk of prejudice to the Commonwealth" simply by asserting that, because no record of the plea exists, his motion to withdraw should have been allowed. Id. at 662, quoting from Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992). We agree with the Commonwealth that the defendant's unsubstantiated claim that the plea colloquy was inadequate is not sufficient to rebut the presumption of regularity. Id. at 664-665. Nor has the defendant provided support for his assertion that counsel was ineffective for failing to reconstruct the record. Even if we were to assume that an ordinary fallible lawyer would have attempted to reconstruct the record of the plea hearing, the defendant has not shown that a reconstructed record would have provided support for any of his claims and, therefore, the failure to reconstruct the record did not amount to ineffective assistance.
Nor does the record provide a basis for the defendant's remaining claims that he is entitled to a new trial because of the alleged absence of pretrial conferences, failure by the Commonwealth to provide exculpatory evidence, or the misinformation about his right to appeal. Having concluded that no alleged errors created a substantial risk of a miscarriage of justice, we affirm.
Order entered July 25, 2013, denying fifth motion for new trial, and order entered August 13, 2013, denying sixth motion for new trial, affirmed.
By the Court (Kafker, Cohen & Vuono, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 20, 2015.