Opinion
No. 14–P–1246.
08-15-2016
COMMONWEALTH v. Aaron WATTS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 1990, the defendant pleaded guilty to murder in the second degree, G.L. c. 265, §§ 1 & 2, and carrying a shotgun without a license, G.L. c. 269, § 10(a). He was sentenced to life in prison with the possibility of parole for murder in the second degree and to a concurrent term of three to five years in prison for carrying a shotgun without a license. He filed a first motion to withdraw a guilty plea in 1994, which was denied, and a second in 2000 which was also denied.
In 2014, acting pro se, the defendant filed the instant motion to withdraw his guilty plea as well as a motion for appointment of counsel and a motion for an evidentiary hearing. These were denied by the motion judge, as was a pro se motion for reconsideration. The defendant has appealed the denial of his motion to withdraw his guilty plea. He argued below both that he was not competent to enter a guilty plea and that his counsel was ineffective in failing to raise the issue of competence during the plea colloquy. On appeal, he argues that the motion judge erred in denying his motion to withdraw his guilty plea, and in doing so without an evidentiary hearing. We see no abuse of discretion or other error of law in the motion judge's denial of this motion without an evidentiary hearing, and therefore affirm.
The defendant's notice of appeal referenced the “recent ruling on [the defendant's] motion for a new trial.” We interpret this phrase to refer to the ruling on the motion captioned, “Defendant's Motion to Withdraw his Plea of Guilt.” We treat the references to the motion to withdraw guilty plea and to the motion for new trial as interchangeable, as a motion for new trial “is the proper vehicle by which to seek to vacate a guilty plea.” Commonwealth v. Scott, 467 Mass. 336, 344 (2014).
“The decision whether to hold an evidentiary hearing on a motion for a new trial is ‘left largely to the sound discretion of the judge.’ Commonwealth v. Stewart, 383 Mass. 253, 257, 259 (1981). An evidentiary hearing is required only where a ‘substantial issue’ has been raised. ‘In determining whether a “substantial issue” meriting an evidentiary hearing ... has been raised, we look not only at the seriousness of the issue asserted, but also to the adequacy of the defendant's showing on the issue raised.’ Id. at 257–258.” Commonwealth v. Chatman, 466 Mass. 327, 334 (2013). Thus, the defendant is entitled to an evidentiary hearing on his motion for a new trial only if the materials submitted along with his motion raise a substantial issue as to his competence or as to whether his attorney provided ineffective assistance of counsel in failing to raise the issue of competence.
“The standard for competence to plead guilty is equivalent to the standard for competence to stand trial.” Commonwealth v. Goodreau, 442 Mass. 341, 350 n. 5 (2004). The test for competence to stand trial “is framed in terms of the defendant's functional abilities: ‘whether [the defendant] ha[d] sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he ha[d] a rational as well as factual understanding of the proceedings against him.’ “ Id. at 350, quoting from Commonwealth v. Russin, 420 Mass. 309, 317 (1995). See Dusky v. United States, 362 U.S. 402, 402 (1960). “When a defendant alleges ... that counsel failed to request a competency hearing or that the judge failed to hold one on her own initiative, we ask, ‘whether, no less on hindsight than by foresight, there were elements of such indication in the situation as, if proper notice had been taken of them, could present a substantial question of possible doubt as to [a defendant's] competency to stand trial.’ “ Commonwealth v. Robidoux, 450 Mass. 144, 153 (2007), quoting from Commonwealth v. Hill, 375 Mass. 50, 54 (1978). See Rhay v. White, 385 F.2d 883, 886 (9th Cir.1967).
The transcript from the plea colloquy does not raise a substantial issue or a substantial question of possible doubt as to whether the defendant was competent. The defendant gave rational and complete answers to the judge during the plea colloquy, except that in response to a question about how much education he had, he stated, “Thirteenth grade.” The plea judge responded, “Thirteen years? You went to one year of college?” The defendant said, “I didn't finish.” It appears, however, that the defendant did not complete high school. Shortly after this exchange, the plea judge asked, “Do you know of any reason why you cannot understand what's going on here today?” The defendant responded, “I'm competent, sir.” After the defendant stated that he understood the plea judge's explanation of the agreed-upon sentences and the rights he would be giving up by pleading guilty, he answered, “No, sir” when the plea judge asked if he had said or done anything that the defendant did not understand. The defendant's attorney confirmed that he had discussed the case with the defendant, including the elements of the crime, the possible defenses, and the consequences of a guilty plea. The defendant's attorney answered, “Yes” when the plea judge asked whether he was “satisfied that [the defendant] understood these discussions.” The defendant then agreed that he and his attorney had discussed these matters and that he had understood those discussions. He declined the plea judge's offer to explain anything that he did not understand.
Even were the reference to the “[t]hirteenth grade,” something that of course does not exist, to provide a basis for concern, we do not think the colloquy taken as a whole, including the plea judge's inquiry of defense counsel as to whether he was satisfied that the defendant understood their discussions of the case, gave rise to a sufficient indication of incompetence that, on that basis alone, the defendant is entitled to an evidentiary hearing, or to withdraw his guilty plea on the grounds of either his incompetence or his counsel's ineffectiveness in not seeking a hearing on competence. Compare Commonwealth v. Cano, 87 Mass.App.Ct. 238, 241–243 (2015) (upholding denial of motion for new trial without evidentiary hearing where defendant provided psychologist's report indicating that he had “intelligence quotient of fifty-six, putting him in the lowest two percent of the population”); Commonwealth v. Robidoux, supra at 152–153 (holding that defendant's decision to file “pro se” handwritten “motion to change plea” on eve of trial, challenging jurisdiction of district attorney's office under “Private Roman Civil Law” and declaring independence from Fourteenth Amendment to United States Constitution, did not raise substantial question of possible doubt as to competency where judge had opportunity to examine defendant about motion).
The other materials submitted with the defendant's motion to withdraw his guilty plea do not change our conclusion. The defendant has submitted both an affidavit from his mother stating that the defendant suffered from depression, learning disabilities, and some unspecified “mental issues,” and medical records from his childhood that indicate a clinician's conclusion that the defendant suffered from some form of depression.
Nothing in the affidavit or the records indicates a lack of competence or establishes that there were elements of such an indication in the situation at the time of the plea that could raise a substantial question of possible doubt as to the defendant's competence. Thus, these materials also do not raise a substantial issue or a substantial question of possible doubt, even when considered together with the defendant's reference to the “[t]hirteenth grade.”
Even if the assertion in the affidavit that the defendant's mother informed defense counsel that her son had “mental issues” could raise a substantial question of possible doubt, the motion judge did not credit the affidavit. The motion judge cited Commonwealth v. Glacken, 451 Mass. 163, 169–170 (2008), as a reason not to credit this affidavit. There, the Supreme Judicial Court held that a judge does not abuse his discretion in deciding not to credit an affidavit on the grounds that it was “very late and self-serving.” Id. at 170. This citation provides sufficient reason for the motion judge's rejection of the affidavit. See Commonwealth v. Vaughn, 471 Mass. 398, 404405 (2015) ( “In determining the adequacy of the defendant's showing, the motion judge may consider whether the motion and affidavits contain credible information of sufficient quality to raise a serious question.... Even where, as here, the motion judge did not preside at the trial, the credibility, weight, and impact of the affidavits are entirely within the motion judge's discretion.... In such cases it is important that the judge provide some reasons for accepting or rejecting a particular affidavit or group of affidavits, to assist the appellate court in understanding whether the judge acted within his or her discretion”).
We conclude that the motion judge did not abuse his discretion in denying the defendant's motion for new trial without an evidentiary hearing.
The defendant also claims at several points throughout his brief that his attorney coerced him into pleading guilty. This court has already considered and rejected this claim in an appeal from a prior motion for new trial. See Commonwealth v. Watts, 48 Mass.App.Ct. 1106 (1999). The defendant has not submitted any new evidence relevant to that claim.
Turning to the next issue, at the time the defendant was convicted, G.L. c. 127, § 133A, as amended by St.1965, c. 776, § 1, provided that if one were denied parole, the parole board was required “at least once in each ensuing three year period” to consider anew whether that defendant should be paroled. In 1996, while the defendant was serving his sentence, the statute was amended by changing the word “three” in the quoted language to “five.” G.L. c. 127, § 133A, as amended by St.1996, c. 43. The parole board applied the amended statute to the defendant when it denied his petition for parole in February, 2013, and provided that “review will be in five years.” The defendant argues, first, that applying the amended statute to him violated the terms of his plea agreement, and second, that it violated the ex post facto clause of the United States Constitution and the ex post facto prohibition contained in art. 24 of the Massachusetts Declaration of Rights.
The parole board thus apparently reads the amended statute to apply to all denials of parole after its enactment, regardless of whether the defendant was convicted before or after that. There is no appellate decision of the courts of the Commonwealth construing the amended statute. We note that the defendant argues only that the law as so construed violates his plea agreement and the ex post facto clause, not that we should construe it as not applying to him.
The defendant is correct that “[w]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Commonwealth v. Cruz, 62 Mass.App.Ct. 610, 611–612 (2004), quoting from Santobello v. New York, 404 U.S. 257, 262 (1971). However, the record does not show that the prosecutor promised, as part of the plea agreement, that the defendant would receive a parole review at least once every three years. In the absence of any evidence of this sort, the statute itself does not constitute an enforceable promise from all prosecutors to all defendants considering whether to plead guilty. Thus, we turn to the defendant's argument that the change in the maximum time between parole reviews is an ex post facto law.
In Garner v. Jones, 529 U.S. 244 (2000), a case cited by neither party, the United States Supreme Court addressed an ex post facto challenge to the application to defendants convicted before its enactment of a Georgia law that, like this one, permits the extension of intervals between parole considerations. The question, the Court explained, was whether the change in law created “a sufficient risk of increasing the measure of punishment attached to the covered crimes,” in that case, as this one, life sentences. Id. at 250, quoting from California Dept. of Corrections v. Morales, 514 U.S. 499, 509 (1995).
The Court upheld against facial challenge the change in the law on the ground that, first, the parole board retained discretion to set an inmate's date for reconsideration sooner than the statute provided, which is also true in this case, and second, that the parole board was permitted to provide “expedited parole reviews in the event of a change in ... circumstance or where the [b]oard receives new information that would warrant a sooner review.” Id . at 254. It appears that Massachusetts regulations, again not cited by either party, also allow for earlier review in light of a change in circumstances. See 120 Code Mass. Regs. § 304.03 (1997), addressing motions for reconsideration of denials of parole. The Court concluded that no significant risk of increasing the measure of punishment attached to the crimes covered there had been demonstrated. This forecloses the defendant's Federal constitutional challenge to retroactive application of the change in our statute.
As for his State constitutional claim, the Supreme Judicial Court has said, “[w]e have treated the meaning and scope of the ex post facto provisions in the Federal and State Constitutions as identical .” Commonwealth v. Cory, 454 Mass. 559, 564 n. 9 (2009). See Police Dept. of Salem v. Sullivan, 460 Mass. 637, 644 n. 11 (2011). Even were we inclined to adopt as a matter of State constitutional law the position of the dissent in Garner that a change extending the date of the second and subsequent reviews of inmates for parole violates ex post facto principles, see Garner, 529 U.S. at 260 (Souter, J. dissenting), we are bound by the Supreme Judicial Court's pronouncement in Commonwealth v. Cory, supra. It is for the Supreme Judicial Court to determine whether our State constitutional provisions should provide greater protection under these circumstances than their Federal constitutional counterpart.
The Court in Garner did allow the inmate there to attempt to demonstrate on remand that the application of the rule in his case would result in a longer period of incarceration than under the earlier rule. Having upheld the rule from facial ex post facto clause challenge, the Court stated that to succeed in such a challenge, “respondent must show that as applied to his own sentence the law created a significant risk of increasing his punishment.” Garner, supra at 255.
As in Garner, we do not think the record in this case allows us to conclude that the change in law lengthened the defendant's time of actual imprisonment. Id. at 256. If indeed the parole board does not permit expedited consideration in the event of changed circumstances, or upon the receipt of new information, the defendant, or someone similarly situated, may in an appropriate case be able to demonstrate based upon “evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.” Id. at 255.
Order dated July 3, 2014, denying motion to withdraw plea of guilty affirmed.