Opinion
14-P-38
03-17-2016
COMMONWEALTH v. RICHARD WALLACE.
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
The defendant appeals from the sentence imposed on revocation of his probation for an unarmed burglary to which he pleaded guilty in January, 2011, as well as the denial of his motion to withdraw that guilty plea. We affirm.
Background. On January 19, 2011, which was the scheduled trial date, the defendant pleaded guilty in Bristol County Superior Court to larceny from a building and unarmed burglary in connection with an incident the previous January in which he entered a Taunton home in the middle of the night and stole numerous items while the homeowner and her granddaughter were inside sleeping. As part of the plea agreement, notwithstanding the defendant's extensive criminal record and history of committed time, the Commonwealth nol prossed so much of the indictment as alleged that the defendant was an habitual offender (which carried a mandatory minimum sentence of twenty years), and the defendant was sentenced to time served on the larceny conviction and three years of probation on the unarmed burglary conviction. The defendant's probation matter was transferred to Norfolk County at his request.
In June, 2012, the defendant was charged in Norfolk County Superior Court in connection with a daytime breaking and entering in Avon in which he was alleged to have stolen property from a residence and then led police on a chase through residential streets before jumping from his moving automobile and fleeing on foot. As a result of the new offense and his failure to pay restitution and a deoxyribonucleic acid (DNA) sample fee, the defendant was found in violation of his probation on the Bristol County unarmed burglary conviction and sentenced to seven to ten years in State prison.
Following the June, 2012, charges, the defendant began attacking his plea in the Bristol County matter, filing multiple pro se motions which were denied. The defendant was then able to vacate the denial of his pro se motions pending assignment of counsel. Represented by counsel, the defendant sought to withdraw his guilty plea by means of a new trial motion. The plea judge having retired, another judge (motion judge) acted on the defendant's motion and denied it as well as his request for reconsideration in a thorough memorandum of decision and order. The defendant's appeal of his probation revocation has been consolidated with his appeal of the denial of his motion for new trial and the motion for reconsideration.
Discussion. 1. Motion for new trial. The defendant claims ineffective assistance of counsel based on plea counsel's advice to plead guilty to charges stemming from the Taunton incident notwithstanding the Commonwealth's lack of proof of identity and counsel's failure to investigate his mental health problems. The motion was denied without an evidentiary hearing.
"A motion for a new trial pursuant to Mass.R.Crim.P. 30(b)[, as appearing in 435 Mass. 1501 (2001),] is the proper vehicle by which to seek to vacate a guilty plea." Commonwealth v. Scott, 467 Mass. 336, 344 (2014). Judges hearing motions to withdraw guilty pleas must rigorously apply the standard set out in Mass.R.Crim.P. 30(b) and should only grant the motion if "it appears that justice may not have been done." Ibid. See Commonwealth v. Berrios, 447 Mass. 701, 708 (2006). In reviewing the denial or grant of a new trial motion, we examine the motion judge's conclusion only to determine whether there has been an abuse of discretion or significant error of law. See Scott, supra. If the motion judge did not preside at the trial, as is the case here, "we regard . . . ourselves in as good a position as the motion judge to assess the trial record." Commonwealth v. Brown, 470 Mass. 595, 602 (2015) (citation omitted).
A motion to withdraw a plea based on ineffective assistance of counsel is substantially governed by the same standard as other claims concerning ineffective assistance of counsel. See Commonwealth v. Walker, 443 Mass. 867, 871 (2005). Accordingly, to prevail, the defendant must demonstrate (1) performance on the part of trial counsel falling measurably below that of an ordinary, fallible attorney, which (2) effectively deprived the defendant of a substantial ground of defense. See 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 Saferian -- the prejudice test -- requires a defendant to show (1) a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial, and (2) that a decision to reject the plea bargain would have been rational under the circumstances. Commonwealth v. Sylvain, 466 Mass. 422, 438 (2013). "[P]roof of prejudice . . . cannot be based on mere conjecture or speculation." Commonwealth v. Marinho, 464 Mass. 115, 129 (2013) (citation omitted).
Here, the defendant has failed to show that trial counsel's performance fell measurably below that of an ordinary fallible lawyer with respect to either his assessment of the state of the Commonwealth's proof and the resulting desirability of the plea or the defendant's mental health and substance abuse issues.
a. Need for an evidentiary hearing. The defendant asserts that the motion judge erred in failing to hold an evidentiary hearing on his motion. "The decision whether to hold an evidentiary hearing is committed to the discretion of the motion judge, and we review that decision for an abuse of discretion. . . . In determining whether a motion for a new trial warrants an evidentiary hearing, both the seriousness of the issue itself and the adequacy of the defendant's showing on that issue must be considered." Commonwealth v. Denis, 442 Mass. 617, 628 (2004). "A judge may make the ruling based solely on the affidavits and must hold an evidentiary hearing only if the affidavits or the motion itself raises a 'substantial issue' that is supported by a 'substantial evidentiary showing.'" Scott, 467 Mass. at 344, quoting from Commonwealth v. Stewart, 383 Mass. 253, 260 (1981).
Although a claim of ineffective assistance is a serious one, we cannot say here that the motion judge abused her discretion in light of the inadequacy of the defendant's showing. See Commonwealth v. Goodreau, 442 Mass. 341, 348-349 (2004); Denis, 442 Mass. at 629. A defendant does not show his entitlement to a new trial simply by denying statements and professions he made under oath at the plea hearing. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 638-641 (2007). While the defendant's affidavit puts great stress on his ignorance of the weaknesses in the Commonwealth's case on the day of the plea, "[a] defendant's self-serving affidavits and assertions are not sufficient, on their own, to raise a substantial issue." Denis, 442 Mass. at 633-634 (quotation marks and citation omitted). Moreover, "[t]he judge, of course, had the right to reject as not credible the defendant's self-serving, conclusory affidavit." Commonwealth v. Grant, 426 Mass. 667, 673 (1998).
Here, the record contradicts the defendant's affidavit. The record shows that the defendant was present at the plea change hearing during all discussions pertaining to the unavailability of key Commonwealth witnesses and so must have been aware of the state of the Commonwealth's evidence. At the outset of the change of plea hearing, plea counsel stated his "understanding [that] the Commonwealth is not able to proceed today because the percipient witness is not present today." At that hearing, the defendant confirmed to the plea judge that he understood that the Commonwealth would have been required to prove beyond a reasonable doubt that he committed each and every element of the indictments and that he knew the "various elements the Commonwealth would have to prove" at trial. Consequently, statements in his affidavit to the effect that he "did not understand that the government had to prove identity beyond a reasonable doubt and that they did not have evidence admissible in court to prove that part of the case" strain credulity.
The defendant's evidentiary showing is also considerably weakened by the absence of an affidavit from plea counsel. See Commonwealth v. Hoyle, 67 Mass. App. Ct. 10, 11 (2006); Hiskin, 68 Mass. App. Ct. at 640-641. The transcript from the plea hearing demonstrates that plea counsel had represented the defendant for roughly one year and had met with him ten to twelve times during that period. Counsel represented to the plea judge that he had discussed the case with the defendant at length, including the problems with the Commonwealth's identification witnesses and even the potential bias he faced from having previously appeared in front of the plea judge. Claiming that plea counsel is now unavailable, the defendant has presented nothing besides his affidavit to substantiate his claim that plea counsel did not sufficiently advise him about the state of the Commonwealth's evidence. Not only was the motion judge free to reject that affidavit as self-serving, but the motion judge was also permitted to view the entirety of the defendant's claim with skepticism given that he only began to challenge the plea after he was rearrested and exposed to significant committed time for violating his probation. Moreover, the leniency of the plea disposition itself undermines the claims of the defendant, experienced in the criminal justice system, that he was unaware of the weaknesses in the Commonwealth's case on the date of the plea. Cf. Grant, 426 Mass. at 672 (defendant not inexperienced in criminal court practice at time of plea).
The motion judge did not abuse her discretion in declining to hold an evidentiary hearing.
b. Commonwealth's lack of proof of identity. The victims of the unarmed burglary in Taunton were unable to positively identify the defendant as the perpetrator. The Commonwealth's investigation, however, revealed that Brenda Phillips and Mary Vincelette had been with the defendant prior to the burglary, were waiting in a rental car while he committed the burglary, and witnessed his return to the car with stolen goods. Vincelette was later found in possession of property stolen from the burgled home. Although she had apparently testified before the grand jury, Vincelette asserted her Fifth Amendment to the United States Constitution privilege the day before trial was scheduled. In addition, Phillips had apparently been committed to a psychiatric program the night before the trial date. The crux of the defendant's motion is that counsel was ineffective in advising him to plead guilty where the Commonwealth did not have either of its two identification witnesses available for trial that day.
The defendant's argument is unpersuasive. As already discussed, the defendant has offered nothing beyond self-serving averments to establish what advice he was or was not given regarding his plea agreement or the considerations he discussed with counsel, and both the record of the plea hearing and the leniency of the deal he accepted undermine his claims. Moreover, given the leniency of the plea compared to the potential maximum penalty he faced, we are not persuaded that counsel would have been ineffective in advising the defendant, if in fact he did so advise, to accept this plea and thereby completely avoid the risk of far steeper penalties should the case ultimately proceed to trial. Cf. Commonwealth v. Mahar, 442 Mass. 11, 17 (2004).
As the Commonwealth argues on appeal, had the defendant rejected the plea, the trial prosecutor could have answered ready for trial and proceeded on the basis of circumstantial evidence of the defendant's identity as the perpetrator. Without determining whether the evidence the Commonwealth had at its disposal at that time would have definitively been sufficient to withstand a motion for required finding, we think counsel could have reasonably advised the defendant that acquittal was not guaranteed, i.e., that a judge might (correctly or not) allow the case to go to the jury, in which case he faced the possibility of guilty verdicts and sentencing on all of the indictments and immediate continued incarceration, regardless of his prospects on appeal.
This evidence included some general physical characteristics of the perpetrator, tracks in the snow leading from the burgled home to a main road to Easton, recovery of some of the stolen items on the road leading to Easton, surveillance footage of the defendant and Vincelette at a gasoline station in Easton just after the burglary, recovery of some of the stolen jewelry from Vincelette four days after the burglary when she was stopped by police in the defendant's company, and the defendant's admission that he was in a relationship with Vincelette at the time of the burglary.
It is also significant in evaluating the strength of the Commonwealth's case and the defendant's chances for acquittal that the shortcomings in the identification evidence had only recently presented themselves. The Commonwealth was not out of options. For example, the Commonwealth contends that it could have pursued immunity for Vincelette. While we do not divine prosecutorial priorities as they pertain to grants of immunity, see Commonwealth v. Wooden, 70 Mass. App. Ct. 185, 191 (2007), given the defendant's extensive record, the vulnerability of the victims in the case, and the intrusive nature of the crime, we cannot say that this was beyond the realm of possibility. We therefore agree with the motion judge that it was mere conjecture that the loss of one of the Commonwealth's witnesses necessarily meant that the defendant would be acquitted. See Marinho, 464 Mass. at 129-130.
We do not conclude from any doubts expressed by the prosecutor in trying to "sell" this disposition to the plea judge that the evidentiary obstacles she faced were insurmountable but only that those obstacles justified a more lenient disposition in the circumstances than the judge might have otherwise believed appropriate given the defendant's extensive record, the nature of the crime, and the maximum potential penalties he was facing. In fact, the prosecutor's reference on the record to the "spot" in which the Commonwealth found itself in terms of proceeding to trial further belies the defendant's claim that he was unaware of the difficulties the Commonwealth faced on the day of trial.
The reasoning of Commonwealth v. Sherman, 451 Mass. 332 (2008), supports our conclusion here. Like the defendant sub judice, Sherman was able to walk free after pleading to lesser charges, though he was placed on probation. After he was ordered to serve the balance of his sentence for violating his probation, Sherman argued that his pleas must have been involuntary because he would not have voluntarily agreed to an unfavorable disposition where the Commonwealth was unable to locate the victim. In concluding that "the defendant very well could have made the pleas voluntarily" despite doubts about the Commonwealth's ability to meet its burden at trial, id. at 340, the court noted, inter alia, that the defendant learned from the plea hearing that the Commonwealth could not locate the victim to prepare her for trial and yet did not object or express concern about her absence, and that the disposition was favorable to him. Id. at 339. Similarly here, the weaknesses in the Commonwealth's case were laid bare at the plea hearing and the defendant benefited from a favorable disposition "to the extent that, as part of the plea agreement, the defendant immediately was released from custody." Id. at 340.
c. Failure to investigate defendant's mental health. The defendant next claims that his history with heroin should have alerted plea counsel to explore the possibility of mental illness. He says this mental illness affected both his ability to knowingly and voluntarily plead guilty and could have also negated or mitigated his criminal responsibility. This argument is unsubstantiated. In fact, the record contradicts this as the defendant stated at the plea hearing that he had never been treated for any mental illness and that he did not take medication for any chronic problem. The defendant himself concedes that he was not diagnosed with a mental illness until after the plea and that it was "unbeknownst to him" that he was even suffering from a mental illness that affected his ability to make clear and meaningful decisions at the time.
There is nothing to indicate that anything that transpired at any of the dozen or so meetings plea counsel stated he held with the defendant prior to the plea hearing would have alerted counsel to the mental illness that the defendant belatedly claims was an issue for him at the time. We hold criminal defense attorneys to the standard of an ordinary, fallible attorney, not a clairvoyant mental health expert. There is also nothing in the record to suggest that plea counsel was, or should have been, aware of the defendant's substance abuse issues. Nor would substance abuse on its own necessarily have had any implications for the defendant's criminal responsibility or competency to stand trial. See Commonwealth v. Osborne, 378 Mass. 104, 111 (1979).
The defendant contends that his motion for funds to hire a mental health expert remains pending. We express no opinion on the merits or status of that motion.
d. Insufficient factual basis. Relying on Commonwealth v. Hart, 467 Mass. 322 (2014), the defendant further contends that the plea judge violated Mass.R.Crim.P. 12(c)(5)(A), as appearing in 442 Mass. 1511 (2004), by failing to ascertain that the Commonwealth could not prove the defendant's identity beyond a reasonable doubt that day.
Putting aside the possibility that the Commonwealth could have sustained its burden through circumstantial evidence, the defendant's claim nonetheless fails. In requiring that the plea judge determine the existence of a sufficient factual basis for the charge, Hart does not require the judge to satisfy herself that the Commonwealth could marshal all of the evidence supporting that factual basis if the case proceeded to trial on that particular day. Rather, the judge looks to the "evidence" and "statement of facts" in the record of the plea hearing for facts supporting the elements of the offense. Hart, 467 Mass. at 326.
That is what the plea judge did here, concluding on the record after the defendant confirmed the truth of the prosecutor's factual recitation, that "[t]he evidence does support the charges contained in the indictments."
2. Cruel and unusual punishment. The defendant also claims that the sentence he received after violating probation is cruel and unusual. Contrary to his claim on appeal, he did not make any similar argument at sentencing. Quite the opposite, the defendant himself recommended a committed sentence, albeit a shorter one than that recommended by the Commonwealth and ultimately imposed by the revocation judge.
As sentencing counsel stated: "he does obviously have to do some type of punitive time for violating his probation. We acknowledge that. We ask for the two to three years."
Regardless of whether the defendant properly preserved this argument, it is without merit. The first part of his claim here is that the Commonwealth could not have obtained this sentence at trial because of the lack of proof of identification. This is but a mere repackaging of the argument we have already rejected. He also argues that the failure to treat his mental illness during previous periods of incarceration amounted to deliberate indifference. The mental health argument is even more speculative in this context than in the ineffective assistance context where the defendant has pointed to absolutely nothing in the record or in the case law to substantiate his claim. As such, it does not rise to the level of appellate argument and we decline to address it. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
The defendant's reliance on Bearden v. Georgia, 461 U.S. 660 (1983), is also inapposite. We discern no merit in the defendant's arguments that he is being punished for his poverty -- the failure to pay restitution and a DNA sample fee -- where the revocation judge here found that he violated his probation "[i]nasmuch as he has further violated the criminal law" by breaking and entering a home in Avon and then engaging in a dangerous car chase in which he caused property damage. Where the defendant committed a new offense that is similar to the offense for which he was on probation, there is no question the revocation judge was entitled to sentence him regardless of the status of his restitution and other payments. Contrast id. at 663 (probation revoked "for failure to pay the balance of the fine and restitution"). See Commonwealth v. Payne, 33 Mass. App. Ct. 553, 556 (1992) ("Unlike the circumstances in Bearden . . ., where the prescribed punishments were fines, here the statutory violations were punishable by sentences to State prison. There was, therefore, a legislative expression that the State's penological interests included incarceration"). Like the defendant in Payne, the defendant here was offered an opportunity "of making restitution as part of a plea bargain, with the express condition that, should he not hold up his end of the bargain, a sentence of incarceration would be imposed." Id. at 557.
We do not address the defendant's unsubstantiated suggestions made in passing that the restitution hearing was inadequate.
There is similarly no merit to the defendant's argument under G. L. c. 127, § 144. The sentence imposed was not for a nonpayment of a fine or expenses, but rather was a sentence for unarmed burglary. That the defendant was initially placed on straight probation does not alter the fact that the disposition he now challenges arises as a result of the originally charged criminal offense, not merely because there has been a nonpayment of monetary amounts. Furthermore, as noted above, revocation of this probation was not based solely on the default with respect to the fine and expenses, but also on new criminal conduct.
Order entered October 3, 2014, denying motion to withdraw guilty plea and for new trial, affirmed. Order denying motion for reconsideration of October 3, 2014, order affirmed.
Order revoking probation and imposing sentence affirmed.
By the Court (Katzmann, Maldonado & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 17, 2016.