Opinion
No. 11–P–862.
2012-06-25
COMMONWEALTH v. Bruce A. BARROWS.
By the Court (GRAHAM, KATZMANN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion for a new trial whereby he sought to withdraw his August 22, 2000, plea of guilty to three counts of indecent assault and battery on a person over the age of fourteen. We affirm.
Background. On September 23, 2010, more than ten years after his guilty pleas, the defendant sought to withdraw those pleas by filing a motion for a new trial. In a detailed, comprehensive decision, the plea judge denied the motion.
A brief review of the procedural history of the defendant's case is required in order to analyze the defendant's claims. On May 1, 2000, the Cambridge District Court clerk's office issued complaint number 0052CR1378. That complaint alleged one count of assault with intent to rape and one count of indecent assault and battery on a person over the age of fourteen. On June 30, 2000, that complaint was dismissed and a new complaint, number 0052CR2151, was issued alleging three counts of indecent assault and battery on a person over the age of fourteen. On August 22, 2000, the defendant entered pleas of guilty to all three counts and was sentenced to a term of seventy-nine days in the house of correction. The defendant now alleges that he received ineffective assistance of counsel because trial counsel should have moved to dismiss the complaints on the basis that police reports connected to complaint number 0052CR2151 were not on file in the clerk's office; therefore, there was no probable cause for that complaint to issue. There are, however, police reports in the clerk's file for the original complaint that was dismissed. The defendant further alleges that his plea counsel never showed him a police report, and that he was never informed of the facts of the charges to which he was pleading guilty.
Because of the passage of time, no record of the plea colloquy exists. The plea judge is deceased. Prior to his death the plea judge denied the motion to withdraw guilty plea in a thorough memorandum and order.
Discussion. In order to assess the defendant's claim of ineffective assistance of counsel, we apply the familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89 (1974). To prevail on his claim, the defendant must show that (1) the behavior of his counsel fell below that which could be expected of an ordinary, fallible lawyer, and, if that test has been met, (2) that the defendant was thereby deprived of an otherwise substantial ground of defense. Id. at 96.
The defendant's first claim, that his attorney was ineffective for failing to move for dismissal of the second complaint because that complaint was not supported by probable cause, is without merit. It is clear from the face of both complaints that they arise out of an incident which was reported to the Cambridge police department on April 28, 2000. The application for the first complaint is supported by police reports that sets forth the complainant's name and her account of the assault. Further, the record reflects that the defendant's motion, in response to the second complaint, to be furnished with the name and statement of the complaining witness was allowed on August 11, 2000. Basic common sense leads us to conclude that the same police reports that supported the first complaint were used to support the issuance of the second complaint, which was, in effect, a substitute complaint for the first complaint that was dismissed. We may also infer that the defendant was provided the complainant's name and statement upon allowance of his motion for that information. Because it is unlikely that a motion to dismiss the second complaint would have been successful, counsel was not ineffective for failing to so move. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983) (noting that “[i]t is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success”). There was no ineffective assistance of counsel by virtue of plea counsel's failure to file a motion to dismiss the second complaint.
The defendant's second claim, that he was neither shown a police report nor advised of the facts of the case to which he pleaded guilty, can be dealt with summarily. The plea judge stated in his written findings that he conducted a full colloquy with the defendant, and that counsel for the defendant (who also brought the motion to withdraw the guilty plea) “also certified in writing that [the judge] gave a full colloquy before accepting the plea of guilty .” Due to the passage of time and the corresponding unavailability of the plea colloquy transcript, the defendant bore the burden of presenting “evidence sufficient to rebut a presumption that the plea proceeding was conducted correctly.” Commonwealth v. Grannum, 457 Mass. 128, 133 (2010). The only evidence offered by the defendant is his own affidavit, which the judge, as he correctly noted in his findings, was not required to credit. See Commonwealth v. Lopez, 426 Mass. 657, 661 (1998). Nothing in the record supports the defendant's contention that trial counsel failed to advise him of the elements of the offenses to which he pleaded guilty, and there was no abuse of discretion in the judge's denial of the defendant's motion.
Order denying motion to withdraw guilty plea affirmed.