Opinion
12-P-569
04-21-2015
COMMONWEALTH v. MESSIAH A. FRANKLIN.
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
Following a jury-waived trial in the Central Division of the Boston Municipal Court completed on September 22, 2011, the defendant was found guilty of carrying a firearm without a license, in violation of G. L. c. 269, § 10(a) (count 1); possession of ammunition without an FID card, in violation of G. L. c. 269, § 10(h) (count 2); and carrying a loaded firearm, in violation of G. L. c. 269, § 10(n) (count 3). The defendant was sentenced to eighteen months in a house of correction on each of the first two counts, deemed served, and to six months of unsupervised probation on the third count. We consolidated the defendant's direct appeal with his appeal from the denial of his motion for a new trial.
The defendant's direct appeal, initially filed on October 26, 2011, was stayed to allow the defendant to file his motion for a new trial.
On appeal, the defendant argues that counsel's failure to present evidence at trial that the firearm the defendant possessed fell under the "antique" exemption from licensing, amounted to ineffective assistance of counsel. The defendant also argues that his convictions of unlawful possession of ammunition (count 2) and carrying a loaded firearm (count 3) are duplicative.
Upon review of the record, we agree that the convictions on counts 2 and 3 are duplicative and vacate the conviction on the lesser offense. In all other respects, we affirm.
Background. We present the undisputed facts from the record. On November 18, 2006, after noticing a police cruiser, the defendant began running away, clutching the right side of his waist area with his hand. A foot chase ensued with one of the police officers in the cruiser catching up with the defendant when the latter ran up to a fence and pulled his hand from his waist area motioning as if he were throwing something over the fence. The police officer looked over the fence, noticing a silver-colored revolver which was later retrieved by another police officer along with two rounds of ammunition in the cylinder of the revolver. Ballistic tests established that the revolver was a firearm and that both rounds in the revolver were ammunition.
Proceedings. On September 12, 2011, trial counsel filed a motion to dismiss, arguing that the revolver was made prior to 1899 and, hence, did not qualify as a firearm as defined in G. L. c. 140, § 121. The judge denied the motion, adopting the Commonwealth's argument that Commonwealth v. Bibby, 54 Mass. App. Ct. 158, 163-164 (2002), established that the antique exemption under G. L. c. 140, § 121, applied only to gun ownership or possession and not to carrying a firearm.
Counsel attached to the motion a printout from a website addressing the manufacturing dates for various J.M. Marlin revolvers, the type of revolver seized by the police. Counsel also attached an affidavit stating that it was her information and belief that the revolver was not a firearm under G. L. c. 140. Defense counsel retained a firearms expert but did not file an expert affidavit with the motion.
General Laws c. 140, § 121, as appearing in St. 1999, c. 1, § 1, provides, in pertinent part, as follows:
"The provisions of sections 122 to 129D, inclusive, and sections 131, 131A, 131B and 131E shall not apply to:"Firearm" is defined in § 121, as appearing in St. 1998, c. 180, § 8, as
"(A) any firearm, rifle or shotgun manufactured in or prior to the year 1899."
"a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured."
On October 25, 2012, following his conviction at trial and the stay of his direct appeal, the defendant filed a motion for a new trial, arguing that trial counsel was ineffective for failing to call a firearms expert to testify that the firearm was an antique and, separately, for failing to call a firearms expert to testify that there was a defect in the firearm. The motion judge (who was also the trial judge) denied the motion, concluding that trial counsel was not ineffective because the exemption from licensing for carrying an antique firearm was not available and could not have been raised as a defense at the defendant's September 22, 2011, trial; at that time, the Supreme Judicial Court had not yet issued Commonwealth v. Jefferson, 461 Mass. 821 (2012).
On appeal, the defendant argues ineffective assistance of counsel only on the first ground.
In denying the motion, the judge also considered trial counsel's strategy, which included "advancing the theory that the defendant did not possess the weapon."
Discussion. Before discussing the defendant's claims on appeal, we present the decisional background relevant for the case at bar. At the time of the defendant's trial, Commonwealth v. Bibby, supra, was the controlling appellate decision in Massachusetts with respect to whether carrying a firearm manufactured before 1900 without a license constituted a violation of G. L. c. 269, § 10(a). In Bibby, this court held that, in conformity with G. L. c. 269, § 10(a)'s legislative purpose, no "antique" exception applied to the requirement of a license to carry. 54 Mass. App. Ct. at 163-164. While the case at bar was pending on direct appeal, the Supreme Judicial Court decided Commonwealth v. Jefferson, supra, holding that, in light of G. L. c. 140, § 121's legislative history, the correct reading of the licensing statute made firearms manufactured before 1900 exempt from the licensing requirement. 461 Mass. at 830-831. The Jefferson court also held that, before claiming a defense of exemption from the licensing requirement, a defendant must provide the Commonwealth with pretrial notice of the affirmative defense of exemption as required by Mass.R.Crim.P. 14(b)(3), as appearing in 442 Mass. 1518 (2004). See id. at 833 & n.10.
1. Ineffective assistance of counsel. Relying on Jefferson, the defendant argues that trial counsel was ineffective for failing to provide the Commonwealth with notice under rule 14(b)(3) that she intended to offer an affirmative defense of exemption from licensing at trial and for failure to provide an opportunity to the firearms expert to examine the firearm before trial. According to the defendant, although Jefferson postdates the defendant's trial, Jefferson would apply to his claim of ineffective assistance of counsel because Jefferson did not "establish" the antique exemption but "simply reaffirmed" the licensing statute's meaning. For the reasons discussed below, the defendant's ineffective assistance of counsel claim cannot prevail.
Demonstrating ineffective assistance of counsel requires a showing that trial counsel's conduct fell "measurably below that which might be expected from an ordinary fallible lawyer," and that said conduct "has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Comita, 441 Mass. 86, 90 (2004) ("defendant must show reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different") (citation omitted). In addition, the first part of the analysis requires assessing "the reasonableness of counsel's . . . conduct . . ., viewed as of the time of [that] conduct." Commonwealth v. Clarke, 460 Mass. 30, 38 (2011), quoting from Strickland v. Washington, 466 U.S. 668, 690 (1984). The necessity of a "fair assessment of attorney performance" motivates the contemporaneity requirement that "every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689.
When Jefferson overruled Bibby on the scope of the "antique" exemption, it "establish[ed] a new principle of law . . . overruling clear past precedent on which the litigants may have relied." Commonwealth v. Breese, 389 Mass. 540, 542 (1983), quoting from Chevron Oil Co. v. Huson, 404 U.S. 97, 106 (1971). That trial counsel did not have the "foresight" to raise a defense of exemption that had no chance of succeeding under the correct law at the time, cannot entitle the defendant to relief for his claim. See Commonwealth v. Silva, 25 Mass. App. Ct. 220, 226 (1987). See also Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 20 (1986) (counsel could not be expected "to be knowledgeable on every newly reported decision," even when the decision at issue was a recent United States Supreme Court opinion that had invalidated a New York statute but had not yet been discussed in Massachusetts decisions). Contrast, e.g., Commonwealth v. Sylvain, 466 Mass. 422, 435-438 (2013) (where a judicial decision on constitutional right to counsel applies an "old rule" that does not break with precedent, counsel is expected to have known and applied the "old rule," and defendant may assert claim of ineffective assistance); Galiastro v. Mortgage Electronic Registration Sys., 467 Mass. 160, 166-167 (2014) ("[D]ecisional law interpreting a statute generally applies retroactively, where it conveys an understanding of what the statute has meant since its enactment").
We also note that although Mass.R.Crim P. 14(b)(3)'s requirements for raising a defense of exemption were in place at the time of trial, defense counsel did not provide ineffective assistance by failing to meet those requirements. Since counsel could not have anticipated that Bibby would be reversed, filing notice for an unavailable defense of exemption would have been futile.
2. Duplicative sentencing. The defendant argues, and the Commonwealth concedes, that the defendant's conviction of unlawful possession of ammunition is duplicative of his conviction of unlawful possession of a loaded firearm. After conducting our independent review, we conclude that, under the facts of this case, the convictions are duplicative and the conviction of the lesser-included crime, the unlawful possession of ammunition, must be vacated.
Conclusion. The judgment on count 2 (possession of ammunition without an FID card) is vacated, the finding is set aside, and the complaint as to count 2 is to be dismissed. The judgments on counts 1 (carrying a firearm without a license) and 3 (carrying a loaded firearm) are affirmed. The order denying the motion for new trial is affirmed.
So ordered.
By the Court (Graham, Brown & Sullivan, JJ.),
Justice Graham participated in the deliberation on this case prior to his retirement.
The panelists are listed in order of seniority.
Clerk Entered: April 21, 2015.