Opinion
No. 12–P–836.
2013-09-19
COMMONWEALTH v. Foster L. STARKS, Jr.
By the Court (TRAINOR, GRAINGER & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant pleaded guilty in the Plymouth Superior Court to indictments charging him with armed assault with intent to rob (two counts), G.L. c. 265, § 18( b ), and armed robbery, G.L. c. 265, § 17. In this appeal, he argues that the judge erred in denying his motion for new trial on grounds that his guilty plea was neither voluntary nor knowing, and that his counsel provided ineffective assistance before and during the plea colloquy.
He also argues that the judge erred in denying his request for a hearing on the motion for a new trial. We affirm.
A post-conviction motion to withdraw a guilty plea is treated under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982); Commonwealth v. Furr, 454 Mass. 101, 106 (2009).
1. Validity of the guilty plea. We review the motion judge's decision denying the defendant's motion for new trial “to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Robicheau, 464 Mass. 699, 702 (2013), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986). In doing so, we bear in mind that a motion for new trial on this ground should be allowed only if “the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth.” Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992). On appeal, therefore, our task is to review the record and weigh the propriety of the motion judge's conclusion that the defendant's plea was the product of his conscious and voluntary choice to forgo a trial with full knowledge and understanding of the consequences of doing so. See Commonwealth v. Furr, 454 Mass. 101, 106 (2009); Boykin v. Alabama, 395 U.S. 238, 242–243 (1969).
The defendant attacks the validity of his guilty plea, claiming that the judge failed to inform him of: (a) the right to call witnesses on his behalf; (b) the right to a nonjury trial; and (c) the Commonwealth's burden to prove his guilt beyond a reasonable doubt. He argues that these deficiencies in the plea colloquy violated his rights to due process and the privilege against self-incrimination as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. While the plea colloquy at issue here did not follow precisely the format prescribed in our cases; see, e.g., Commonwealth v. Lewis, 399 Mass. 761, 764 (1987), citing Smith, Criminal Practice and Procedure, § 1238 (2d ed.1983); we are not persuaded that any of the alleged deficiencies claimed by the defendant are so egregious as to invalidate the plea.
The motion judge properly concluded that the plea colloquy
adequately conveyed to the defendant the fundamental constitutional rights subject to waiver on a guilty plea and established his understanding of the consequence of the waiver of those rights. The colloquy conducted during the plea hearing comported in all respects with the requirements of Commonwealth v. Lewis, supra, that “[a]t a minimum, the record must demonstrate that the judge advised the defendant that, in pleading guilty ... he waives three fundamental constitutional rights: (1) the right to a jury trial; (2) the right to confront witnesses; and (3) the privilege against self-incrimination.” Ibid.
The plea colloquy included in relevant part the following exchange:
Court: “You have a jury trial right—a right to a jury trial on any of these charges. If you had a trial, only the jury would decide if you're guilty or not guilty. During your trial you'd have the right to present any—to confront any witnesses against you, have them cross-examined on your behalf by your attorney. .... During your trials you would still have the right to remain silent. You wouldn't have to answer any questions unless you decided to testify on your own behalf.... Do you understand that?”
Defendant: “Yes.”
Notwithstanding the judge's substantial compliance
with the model colloquy referenced in Lewis, supra, and Mass.R.Crim.P. 12(c)(3)(A), as amended, 399 Mass. 1215 (1987),
The judge “need not adhere slavishly to the published questions, but it must appear from the questions and answers that the defendant knew what he was doing and did so voluntarily.” Commonwealth v. Lewis, 399 Mass. at 764, citing Commonwealth v. Morrow, 363 Mass. 601, 604–605 (1973).
the defendant complains that the judge failed to inform him of his right to call witnesses on his behalf and that this lapse invalidates the plea. As a threshold matter, the record does not support this claim. After informing the defendant of his right to a trial, the judge advised that “[d]uring your trial, you'd have the right to present any-to confront any witnesses against you, have them cross-examined on your behalf by your attorney.” While not a model of clarity, this statement adequately explained the role of witnesses at a trial. “No particular form of words need be used in the required inquiry of a defendant.” Commonwealth v. Furr, supra at 106 n. 8, quoting from Commonwealth v. Quinones, 414 Mass. 423, 434 (1993).
.Rule 12(c)(3)(A) provides that the judge shall inform a defendant: “that by a plea of guilty or nolo contendere, or an admission to sufficient facts, the defendant waives the right to trial with or without a jury, the right to confrontation of witnesses, the right to be presumed innocent until proved guilty beyond a reasonable doubt, and the privilege against self-incrimination.”
Even if it could be said that the judge failed to apprise the defendant of this right, that lapse would not require the motion judge to vacate the plea. Where the alleged deficiency in the plea colloquy involves “intra-trial” rights such as the right to present a defense, the defendant must establish that the omission would have made a difference in the decision to plead guilty. See Commonwealth v. Correa, 43 Mass.App.Ct. 714, 718 (1997). Essentially for the reasons stated in the Commonwealth's brief at pages 17–19, we conclude that the defendant has failed to meet this burden.
Nor was the judge obliged to inform the defendant of the difference between a jury trial and nonjury trial. See Commonwealth v. Hubbard, 457 Mass. 24, 25 n. 4 (2010), citing Commonwealth v. Gonsalves, 57 Mass.App.Ct. 925, 925–926 (2003). Because the defendant concedes as much, see defendant's brief at page 16, we do not consider the matter further.
Though the plea colloquy failed to mention the Commonwealth's burden of proof, this omission was not fatal to the plea. We are aware of no case holding that such an omission vitiates the “knowing or intelligent” requirement for the acceptance of a guilty plea and the defendant has not pointed to any relevant authority.
On this point, as with many others in the defendant's brief, we have been directed to citations which are completely inapposite.
Taken together, the minor technical deviations in the plea colloquy do not require a new trial. See Commonwealth v. Nolan, 19 Mass.App.Ct. 491, 496 (1985). Therefore, we decline to find error where the record establishes that the plea is otherwise both voluntary and knowing.
2. Ineffective assistance of counsel. The defendant argues that counsel's failure to advise him of the “evidence against him” and “his trial rights” deprived him of his Federal and State constitutional right to effective assistance of counsel. In the analysis of a claim of ineffective assistance of counsel, we apply the familiar standard set out in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant must establish that counsel's representation fell “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.” Ibid.
We see no abuse of discretion in the judge's denial of the motion for a new trial on this ground. In considering the defendant's motion, the judge had before him affidavits purporting to show that counsel had failed to inform the defendant of the nature of the charges against him. We cannot say that the judge erred in declining to credit the defendant's claim that his attorney failed to provide advice on the nature of the charges. The judge was entitled to disbelieve the affidavits, even if they were uncontradicted. See Commonwealth v. Pingaro, 44 Mass.App.Ct. 41, 48 n. 10 (1997).
Nevertheless, even if the defendant had succeeded in showing that counsel's advice was deficient, it would make no difference to our analysis. The defendant has failed to demonstrate that counsel's lapse was prejudicial.
3. Failure to hold a hearing. This last claim of error need not detain us as there has been no showing that the judge abused his discretion in failing to hold a hearing on the defendant's motion for new trial. “The motion judge may properly determine the issues raised solely on affidavits, the credibility, weight and impact of which are also entirely within [his] discretion.” Commonwealth v.. Thurston, 53 Mass.App.Ct. 548, 551 (2002) (citation omitted).
Order denying motion for new trial affirmed.