Opinion
10-P-1483
08-29-2011
COMMONWEALTH v. ANGEL COLON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order denying his motion for a new trial. His motion for a new trial alleges ineffective assistance of counsel for trial counsel's failure to pursue an interlocutory appeal following the denial of the defendant's motion to suppress. We affirm.
Background. On October 25, 2007, an evidentiary hearing was held on the defendant's motion to suppress. On February 11, 2008, the trial judge made findings of facts and denied the motion. On February 12, 2008, the defendant entered a plea of guilty of breaking and entering in the daytime with the intent to commit a felony and larceny over $250. The defendant filed a motion for a new trial, a hearing was held on March 31, 2010, and the motion was denied on April 15, 2010.
Absent clear error, we accept the judge's factual findings and consider the entire record that led to the judge's findings. See Commonwealth v. Selby, 420 Mass. 656, 657 (1995).
In ruling on the motion to suppress, the judge made the following findings:
'On June 13, 2007, Officer [Tammy] O'Neill was on patrol in South Hadley. At approximately 12:45 P. M. and then at 1:30 P. M. she was in the area[ ] of Brainard Street and Lathrop Street. On both occasions she observed a lone man walking in that general location. Officer O'Neill was familiar with the area not only from her years as an [o]fficer for the [t]own but also as a long time resident of that particular neighborhood.
'On each occasion [that] she saw the lone male[,] he was in possession of different items. On the second occasion she stopped her vehicle and had a conversation with this man[,] later identified as Mr. Colon. This contact did not constitute a stop. The actions taken by Officer O'Neill alone and when assisted by Sgt. Whelihan [fell] well with[in] community caretaker functions of the police. Mr. Colon was allowed to leave when the officers had obtained information regarding the defendant and the electronic items he was carrying.'
At the hearing on the defendant's change of plea, the defendant admitted to the facts as stated by the assistant district attorney. In his recitation of the facts, the assistant district attorney told the judge that the defendant was seen by Officer O'Neill walking toward Lathrop Street carrying a black knapsack. He further stated that the defendant was seen in the same area a little over an hour later, but that at this time, the defendant was pushing a mountain bike and carrying a cream-colored beach bag and a black duffel bag. Officer O'Neill approached the defendant and spoke with him, asking him his name, and what he was doing. The defendant identified himself and told Officer O'Neill that he was coming from Amherst. This did not make sense to Officer O'Neill. She took the serial numbers of the electronics contained in one of the bags that the defendant was carrying.
A central issue in this case is the question whether the defendant was 'stopped,' in the constitutional sense, when Officer O'Neill spoke with him. Although the judge merely concludes that the contact 'did not constitute a stop,' this finding by the judge is fully supported by the record of the hearing on the motion to suppress. At that hearing, Officer O'Neill testified that the defendant was very cooperative with herself and with Sergeant Whelihan. A fair reading of the evidence supports the conclusion that the defendant was friendly and cooperative throughout the encounter and consented to the officer's recording the serial numbers appearing on the electronics contained in a bag the defendant was carrying. Although not specifically stated in the judge's findings, there was no objective indicia signaling a 'stop' in the constitutional sense; namely, the defendant was free to leave, there was no display of force or weaponry by the officers, and the defendant was not patfrisked or handcuffed. See Commonwealth v. Lopez, 451 Mass. 608, 610-612 (2008), and cases cited. The motion to suppress was properly denied.
Sergeant Whelihan testified that it was the protocol of the South Hadley police department to have another officer assist any officer who left his or her vehicle.
Discussion. At the outset, we note that the defendant pleaded guilty in this case. 'A defendant's guilty plea, made knowingly, voluntarily and with the benefit of competent counsel, waives all nonjurisdictional defects in the proceedings prior to the entry of the guilty plea.' Commonwealth v. Fanelli, 412 Mass. 497, 500 (1992). 'A postsentence motion to withdraw a [guilty] plea is treated as a motion for a new trial.' Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000). 'A judge may grant a motion for a new trial only 'if it appears that justice may not have been done,' and 'if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth." Commonwealth v. Walker, 443 Mass. 867, 871 (2005), quoting from Commonwealth v. Fanelli, supra at 504. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The standard of review, therefore, is whether any error may have created a substantial risk of a miscarriage of justice. See Commonwealth v. Russell, 439 Mass. 340, 345 (2003).
Because we conclude that the motion to suppress was properly denied, it follows that counsel's failure to pursue an interlocutory appeal from the denial of that motion did not constitute ineffective assistance of counsel.
Order denying motion for new trial affirmed.
By the Court (Trainor, Brown & Carhart, JJ.),