Opinion
13-P-1025
11-25-2014
COMMONWEALTH v. TODD A. FAUST
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 the denial of his motions to withdraw guilty pleas by the Superior Court. He argues that the motions should have been allowed because he received ineffective assistance of counsel, making his pleas unknowing and involuntary. We affirm.
On February 10, 2009, the defendant appeared for trial, but, after negotiations, pleaded guilty to assault and battery on a police officer and resisting arrest. He also stipulated to a pending probation violation and received the sentence agreed between his lawyer and the prosecutor - a sentence of one year in a house of correction with credit for time served; the sentence for the probation violation was to run concurrently with that for the new offenses.
Prior to the scheduled trial date, the defendant also had been charged with drug and firearm offenses and a probation violation; on September 24, 2008, the motion judge had ordered suppression of the drugs and firearm evidence, and the Commonwealth filed a nolle prosequis on those charges.
On May 16, 2013, facing Federal sentencing on an unrelated matter, the defendant filed a motion to withdraw his guilty pleas; the motion was denied by the same judge who had heard the plea. On September 16, 2013, the defendant filed a second motion to withdraw his guilty pleas, this time including, in addition to his own affidavit, an affidavit purporting to be from a percipient witness, and transcripts of the plea colloquy and subsequent sentencing hearing. On October 28, 2013, the same judge denied the second motion. The defendant timely appealed.
The defendant timely appealed the denial, and subsequently received a stay of the appeal from this court in order to file the second motion to withdraw the plea; the two appeals were consolidated.
On appeal, the defendant argues that, had his attorney told him at the time of the pleas that the previously suppressed (drug and firearm) evidence could not be admitted at trial, he would have chosen to proceed to trial, as he considered himself innocent of the assault on the police officers. In addition, he asserts that one of the witnesses to the incident was present in the courtroom at the time of the pleas, and would have rebutted the Commonwealth's case by providing testimony to support a self-defense instruction. In the defendant's view, the ineffective assistance rendered his plea unknowing and involuntary. He does not challenge the adequacy of the plea colloquy.
"A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30(b). Commonwealth v. Furr, 454 Mass. 101, 106 (2009). A judge may grant such a motion 'if it appears that justice may not have been done.' Mass. R. Crim. P. 30 (b)." Commonwealth v. Rodriguez, 467 Mass. 1002, 1004 (2014). Notably, "[w]e grant substantial deference to a decision denying a rule 30(b) motion . . . when the judge passing on the motion is the same judge who heard the plea." Commonwealth v. Williams, 71 Mass. App. Ct. 348, 353-354 (2008), quoting from Commonwealth v. Grant, 426 Mass. 667, 672 (1998). "'The motion "is addressed to the sound discretion of the trial judge, and . . . will not be reversed unless it is manifestly unjust . . . ."' Commonwealth v. Colon, [439 Mass. 519, 524 (2003)], quoting Commonwealth v. Russin, 420 Mass. 309, 318 (1995)." Commonwealth v. Furr, supra.
"It is well established that a judge has discretion to deny a new trial motion on the affidavits." Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012); see Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1502 (2001). "Indeed, the rule encourages the denial of a motion for a new trial on the papers, without hearing, where no substantial issue is raised." Ibid.; See Reporter's Notes to Mass.R.Crim.P. 30(c)(3), 47 Mass. Gen. Laws Ann. at 759 (West 2006). "[T]he weight and credibility to be accorded those affidavits are within the judge's discretion." Commonwealth v. Furr, supra.
"[T]he defendant's contention of ineffectiveness contradicts his previous sworn statements during the plea colloquy." Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 643 (2007). In support of his second motion, the defendant provided his own affidavit and an additional affidavit from his cousin, William Allsop, who stated he had been present at the time of the defendant's arrest. The judge found neither of these affidavits credible. See Commonwealth v. Furr, supra. In addition, the defendant's "motion is conspicuously marred by failing to include an affidavit from his original defense counsel or to explain the absence of such affidavit." Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 553-554 (2002). The judge may draw a negative inference from this omission. See Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004).
Judging from this record, the Commonwealth's case was strong. It would be reasonable for defense counsel to conclude, from the police officers' testimony at the suppression hearing, that their trial testimony "would be effective against [the defendant]." In addition, this defendant was offered, and accepted, a very favorable disposition, considering the seriousness of the charges and the fact of his pending probation violation. In light of the foregoing, we are satisfied that the defendant failed to demonstrate that his attorney's conduct fell below that of "an ordinary fallible lawyer" and that that conduct prejudiced the defendant by "depriving him 'of an otherwise available, substantial ground of defence.'" Commonwealth v. Yardley Y., 464 Mass. 223, 230 (2013), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
On the probation surrender, the case was even stronger. Not only was the burden of proof lower, but the suppressed evidence could have been considered. See Commonwealth v. Simon, 57 Mass. App. Ct. 80, 87 (2003). Given that the defendant received concurrent sentences on both, it strains credibility that he would have chosen to go to trial, given the state of the evidence, and the prospect of greater jail time. A seasoned veteran of the criminal justice system, he accepted the generous terms of the joint plea.
The defendant's second claim - that his pleas were neither knowing nor voluntary - also fails. During the plea colloquy, the defendant acknowledged his satisfaction with counsel's representation, admitted to the facts recited by the prosecutor, and was given, prior to the start of the hearing, an opportunity to participate in further discussions with his attorney on the remaining charges after the plea had been negotiated. In addition, he was released from custody to permit him to attend to personal matters before the judge imposed the sentence. Fairly considered, the "contemporaneous record contains an affirmative showing that the defendant's plea was intelligently and voluntarily made." Commonwealth v. Furr, 454 Mass. at 106.
Where the defendant has failed to raise a substantial issue in his motions, we are satisfied that the judge did not abuse his broad discretion in denying the defendant's motions, and doing so without a hearing. See Ibid.; Commonwealth v. Gordon, 82 Mass. App. Ct. at 394.
Orders denying defendant's motions to withdraw guilty pleas affirmed.
By the Court (Kantrowitz, Grainger & Hanlon, JJ.),
Clerk Entered: November 25, 2014.