Opinion
19-P-1604
10-15-2020
COMMONWEALTH v. Christopher FISICHELLA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On June 28, 2017, through a plea agreement, the defendant, Christopher Fisichella, admitted to sufficient facts for assault and battery on a family or household member, pursuant G. L. c. 265, § 13M (a ), and malicious destruction of property, pursuant to G. L. c. 266, § 127, and his case was continued without a finding for one year. The defendant now appeals from the denial of his third motion for a new trial arguing, among other things, that his plea was coerced by his counsel, he was denied his right to a trial, and his counsel was ineffective. We affirm.
Background. On October 23, 2016, the defendant and his wife got into an argument, and his wife began to record him with her cell phone. The defendant grabbed his wife's elbow, took the cell phone, and broke it. The defendant's wife called the police and the defendant was arrested. On June 28, 2017, the defendant admitted to sufficient facts for assault and battery on a family or household member and malicious destruction of personal property valued over $250. Both charges were continued without a finding for one year and dismissed on June 28, 2018.
As the transcript of the plea colloquy was incomplete, we summarize the following facts as they appear in the uncontroverted record, and as implicitly credited by the motion judge. See Commonwealth v. Hernandez, 473 Mass. 379, 380 (2015).
On November 2, 2017, the defendant filed his first motion for a new trial. After a nonevidentiary hearing on December 8, 2017, the judge (motion judge) denied the motion. There was no appeal. On January 3, 2018, the defendant filed a motion for rehearing. The defendant filed numerous amendments to the motion, each setting forth new arguments between January and March of 2018. The motion judge treated the motion as a second motion for a new trial, and after an evidentiary hearing on April 3, 2018, denied the motion. Again, there was no appeal. On May 7, 2019, the defendant filed his third motion for a new trial, which was denied by the motion judge without a hearing. The defendant now appeals from the denial of his third motion for a new trial.
Discussion. "A motion to vacate an admission to sufficient facts is treated as a motion for a new trial." Commonwealth v. Muniur M., 467 Mass. 1010, 1011 (2014). We review a judge's denial of such a motion only to "determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016), quoting Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015). "The judge's discretion includes the flexibility to consider the case as a whole, specifically ‘to consider in the interest of justice all evidence that might bear on the issues presented.’ " Commonwealth v. Laguer, 89 Mass. App. Ct. 32, 40 (2016), quoting Commonwealth v. Grace, 397 Mass. 303, 312 (1986).
1. Admission to sufficient facts. The defendant first contends that he is entitled to a new trial because he was coerced by his attorney into admitting to sufficient facts. Because the defendant did not raise this issue in his first motion for a new trial, it is waived. See Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501 (2001). "If a motion for a new trial rests on an unpreserved claim of nonconstitutional error, a new trial should be granted only if the defendant demonstrates a ‘substantial risk of a miscarriage of justice ....’ " Commonwealth v. Brescia, 471 Mass. 381, 389 (2015), quoting Commonwealth v. Childs, 445 Mass. 529, 530 (2005). "The rule of waiver ‘applies equally to constitutional claims which could have been raised, but were not raised’ on direct appeal or in a prior motion for a new trial." Commonwealth v. Roberts, 472 Mass. 355, 359 (2015), quoting Commonwealth v. Watson, 409 Mass. 110, 112 (1991).
An admission to sufficient facts must be voluntary and intelligent. Commonwealth v. Berrios, 84 Mass. App. Ct. 521, 527 n.10 (2013). The defendant does not argue that he was uninformed of his rights or that he was unaware that he was waiving them by admitting to sufficient facts. Rather, he argues that his admission to sufficient facts was coerced by his attorney threatening to withdraw as counsel if he did not accept the plea. "Absent objective indicia in the record or credible extrinsic proof that the defendant's sworn statements are the product of coercion, duress, or improper inducements," a judge is warranted in denying the defendant's motion for a new trial. Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 640 (2007). The defendant has failed to submit an affidavit from defense counsel, and the motion judge could reasonably conclude that he failed to set forth any credible evidence that his plea was coerced. His claims of coercion rest entirely on "unsupported assertions ... that the judge was free to reject as selfserving and contradictive of previously sworn professions." Id. Where the defendant signed a waiver that his admission was voluntary, the motion judge could reasonably discredit his claims that his plea was coerced, and did not submit an affidavit from his counsel, the motion judge did not abuse his discretion or commit an error of law in denying his motion for a new trial.
During the hearing on the defendant's second motion for a new trial, the defendant testified that he felt forced to lie under oath when he admitted to sufficient facts because his attorney threatened to withdraw representation if he did not accept the continuance without a finding. However, the defendant did not present any objective evidence of coercion. The defendant's own father testified that the defendant's counsel, "as a good attorney, was trying to give him the pluses and the minuses of a trial and what can happen if you take the chance," and that his attorney "felt quite strongly that Christopher should submit and not take the risk of going in front of the Court."
As a result, we find no merit in the defendant's claims that he was denied his rights to a trial and to confront witnesses. When the defendant voluntarily admitted to sufficient facts, he waived these rights. See Commonwealth v. Lopez, 426 Mass. 657, 660 (1998). He further cannot now claim that he did not commit the offenses. We discern no substantial risk of a miscarriage of a justice.
2. Ineffective assistance of counsel. The defendant next asserts that his counsel was ineffective for threatening to withdraw as counsel on the date of trial, and in failing to pursue his sole defense, depose the victim, and represent him in his appeal. These claims were not raised in the defendant's first motion for a new trial, and as such, we review them for a substantial risk of a miscarriage of justice. See Roberts, 472 Mass. at 359 ; Brescia, 471 Mass. at 389.
When the basis for the motion for a new trial is a claim of ineffective assistance of counsel, "the defendant must show that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255 (2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If the claim of ineffective assistance is directed to counsel's representation incident to a guilty plea, the second prong requires a defendant to show "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Commonwealth v. Pike, 53 Mass. App. Ct. 757, 762 (2002), quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). The defendant must also "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Lavrinenko, 473 Mass. at 55, quoting Commonwealth v. Clarke, 460 Mass. 30, 47 (2011).
The defendant has failed to make the requisite showing. The defendant has not submitted an affidavit from his attorney, nor has he shown that his attorney provided incompetent advice. Even if the defendant could meet the first prong, he suffered no prejudice. The defendant argues that absent defense counsel's advice, he would have proceeded to trial and solely defended his case with evidence that the victim was cyberbullying their son. However, based on the evidence that the Commonwealth had against the defendant, including his own statements to the police that he grabbed the victim and broke the phone, rejecting the plea of a continuance without a finding and proceeding to trial based on this defense would not have been rational under the circumstances.
In fact, after the second motion for a new trial, the defendant submitted an email exchange to the motion judge where his prior counsel denied the existence of any coercion.
The defendant also contends that his counsel was ineffective for failing to investigate and pursue a defense based on the victim's cyberbullying. However, a decision not to pursue a defense for tactical reasons, such as where the defense would be factually weak, does not rise to the level of ineffective assistance. See Commonwealth v. Spray, 467 Mass. 456, 473 (2014).
Finally, the defendant's attorney was not ineffective for failing to depose the victim. Depositions, generally, are not permitted in criminal cases, absent exceptional circumstances. See Mass. R. Crim. P. 35 (a). The defendant's attorney was not further required to represent the defendant in his appeal. His representation was complete when the defendant obtained a continuance without a finding. See Commonwealth v. Mosher, 455 Mass. 811, 822 (2010). We conclude that there was no abuse of discretion or error of law in the motion judge's denial of the defendant's third motion for a new trial. Accordingly, we discern no substantial risk of a miscarriage of justice.
To the extent that we do not address the defendant's other contentions, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Order denying motion for new trial affirmed.