Opinion
No. 11–P–1773.
2013-06-6
COMMONWEALTH v. Michael PERALTA.
By the Court (COHEN, SIKORA & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Michael Peralta, was charged with unlicensed possession of a firearm as a subsequent offender, and possession of ammunition. While represented by counsel, he pleaded guilty to all charges in February, 2007. In July of 2009, he filed a pro se motion for a new trial, pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), which the motion judge, who also was the plea (and trial) judge, denied in September, 2011. On appeal of the denial of the motion for a new trial, the defendant, pro se, argues that (1) counsel was ineffective for failing to retain a firearms expert to investigate the firearm's operability and for failing to challenge the ballistics certificate, (2) counsel improperly appeared at a pretrial conference without the defendant, causing prejudice, and (3) the colloquy before the merging of his pleas was erroneous and counsel was ineffective for failing to object to it. “In reviewing the denial of a motion for a new trial, we examine the judge's conclusion to determine only whether there has been an abuse of discretion or other error of law.” Commonwealth v. Murphy, 442 Mass. 485, 499 (2004). We give special deference to the decisions of a judge who was, as here, the trial judge. Ibid. Because the defendant claims ineffective assistance of counsel, we determine “whether there has been serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer—and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “Where a claim of ineffective assistance is directed to counsel's representation incident to a guilty plea, the second prong of the Saferian test requires a defendant to show ‘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. Pike, 53 Mass.App.Ct. 757, 762 (2002), quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985).
The defendant pleaded guilty mid-trial.
Proceedings on the motion for a new trial were stayed for many months at the defendant's request.
1. Firearm. a. Operability. The defendant contends that (1) the weapon could not fire, (2) counsel's failure to obtain an expert and pursue that defense was ineffective and deprived him of a substantial ground of defense, and (3) he would not have pleaded guilty if counsel had pursued that defense. As the judge noted, “the record provides commodious proof that the weapon constituted a functioning firearm. A ballistician's certificate attesting to the gun's capacity to fire constituted an informed, expert opinion on the gun's operational capacity and qualification as a firearm.” Furthermore, Officer Michael Pereira testified at trial that he closely observed the gun, which was cocked, loaded, and ready to fire.
In the judge's words, Pereira observed that “(1) ‘the safety mechanism was off and it was ready to fire’; (2) ‘the clicking of a button caused the expected dislodgement of the magazine’; (3) ‘five bullets were located in the magazine’; and (4) ‘a pulling of the slide to the rear resulted in the extraction of a bullet from the chamber.’ Pereira's observations of the alleged firearm provided circumstantial proof corroborating the ballistician's certificate attesting to the gun's functional capacity and qualifications as a firearm. The presence of five bullets in the magazine and one in the chamber, with the safety off, indicated the incidence of measures necessary to using the gun. Such preparatory measures signified the handler's belief in the weapon's capacity to fire.”
The defendant now claims—for the first time on appeal at oral argument—a new factual claim, i.e., that he had test fired the gun the day before his arrest and the gun was inoperable at that time. In order to obtain an evidentiary hearing, the defendant was obligated to make the threshold factual showing to the judge. In the absence of an affidavit from the defendant attesting to the test firing, and/or an affidavit from counsel regarding these claims, the judge's decision not to hold an evidentiary hearing on the issue was not an abuse of discretion. See Commonwealth v. DeVincent, 421 Mass. 64, 67 (1995); Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004).
b. Ballistics certificate. The defendant contends that counsel was ineffective for failing to challenge the validity of the ballistics certificate. See Melendez–Diaz v. Massachusetts, 557 U.S. 305, 311 (2009) ( Melendez–Diaz I ) (certificate of analysis inadmissible without analyst testimony); Commonwealth v. Melendez–Diaz, 460 Mass. 238, 246 (2011) (deciding that Melendez–Diaz I announced new rule that was not retroactive to convictions final before new rule announced). At the time of the plea in 2007, Commonwealth v. Verde, 444 Mass. 279, 282–285 (2005), governed the admissibility of certificates. Any objection or challenge to the ballistics certificate would have been futile. See Commonwealth v. Vasquez, 456 Mass. 350, 356–358 (2010). The failure to pursue a futile strategy does not render counsel's assistance ineffective. Commonwealth v. Vieux, 41 Mass.App.Ct. 526, 527 (1996). See Commonwealth v. Boria, 460 Mass. 249, 253 (2011) (appellate counsel not ineffective for failing to raise on appeal objection, made at trial, to admission of drug certificates before United States Supreme Court decision in Melendez–Diaz I ).
The conviction became final with the plea. See Commonwealth v. Buckley, 76 Mass.App.Ct. 123, 128 (2010), citing United States v. Broce, 488 U.S. 563, 569 (1989).
2. Pretrial conference. The defendant contends that he was “prejudiced by not being present at the pre-trial conference where he had not had to that point an opportunity to confer with [his][a]ttorney and formulate his defense.” He contends that his attorney violated Mass.R.Crim.P. 11, as appearing in 442 Mass. 1509 (2004), requiring the prosecutor and the defense attorney to attend a pretrial conference, which is binding upon the parties. Because of his absence, the defendant now claims he could not discuss with his attorney the operability of the firearm. The defendant did not raise this argument in his motion for a new trial. We review for a substantial risk of a miscarriage of justice. See Commonwealth v. Proulx, 61 Mass.App.Ct. 454, 461 (2004).
.Rule 11 required, at the time of that conference, that the “defendant shall be available for attendance at the pretrial conference.” Superior Court Standing Order 2–86 provided that, as to a pretrial conference, “[i]n accordance with Mass. R.Crim. P. 11(a), the defendant shall be available for attendance at the pretrial conference.” The standing order also provided that “[i]n all cases the defendant shall be available for the pretrial hearing in the courthouse, and shall sign the completed conference report when necessary to waive constitutional rights or when the report contains stipulations as to material facts.”
“The defendant's availability is required pursuant to that rule in order to facilitate (1) agreements amounting to the waiver of a constitutional right; (2) stipulations of material fact; and (3) other agreements which do not involve constitutional waivers.” Commonwealth v. Feeney, 31 Mass.App.Ct. 144, 145–146 (1991), citing Reporter's Notes to Mass.R.Crim.P. 11(a), Mass. Ann. Laws, Rules of Criminal Procedure, at 196 (Law.Co-op.1979). No rights were waived at the pretrial conference, and the pretrial memorandum specifically stated that the defendant denied all charges.
On the first day of trial the defendant addressed the judge directly, stating that he had not had sufficient time to confer with counsel. The judge empaneled the jury, but deferred trial until the next day, to give the defendant time to confer with counsel. The next day, after having had the better part of the previous day to confer with counsel, the defendant stated he wanted to plead because of a pending Federal case carrying a significant sentence. The defendant then accepted a favorable plea deal in which the judge agreed, over the prosecutor's objection, that the defendant would receive a sentence concurrent with a Federal sentence to be imposed later, and declared himself to be satisfied with counsel. There is no indication on this record that the defendant would not have pleaded guilty if he had been present at the pretrial conference, and no prejudice accrued to the defendant as a result of his absence.
3. Colloquy. The defendant contends that counsel was ineffective for not objecting to a failure to bifurcate his plea to unlicensed possession of a firearm as a subsequent offender. Relying on Commonwealth v. Pelletier, 449 Mass. 392 (2007), he claims that because the firearm possession charge and the subsequent offender portion of the charge require a bifurcated trial, the plea colloquy must also be bifurcated. Pelletier does not require fully separate colloquies, but requires the judge to (1) make clear, and ensure the defendant understands, that the initial questioning applies to the subsequent offender portion of the charge, (2) give the prosecutor an opportunity to set forth the facts of the prior offenses, and (3) further inquire as to whether the defendant committed the prior offenses, and whether his plea is voluntary and made with an understanding of its consequences. Id. at 397–398.
Here, the judge twice explained to the defendant that there would be two phases of trial. The defendant acknowledged that he understood both times. First, following jury empanelment, the court explained the two phases of trial. Second, during the plea colloquy the judge questioned the defendant regarding voluntariness, and the defendant stated that his plea was voluntary. The judge also told the defendant that he was charged with unlawful possession of ammunition and a firearm, that he first would have to be convicted of those crimes at the first trial, and that there would be a second trial with respect to his three previous violent crimes. The prosecutor presented the facts of the current and the prior offenses. The defendant admitted to the facts and stated that he was satisfied with his attorney's representation. There was no error in the colloquy, and defense counsel was not ineffective for failing to request a bifurcated plea colloquy.
The defendant also contends that the judge violated Mass.R.Crim .P. 14, as amended, 444 Mass. 1501 (2005), and Mass.R.Crim.P. 12, as appearing in 442 Mass. 1511 (2004). The defendant's arguments on these points do not rise to the level of appellate argument and we do not reach them. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See also Commonwealth v. Anderson, 445 Mass. 195, 214–215 (2005).
Order denying motion for new trial affirmed.