Opinion
No. 11–P–1292.
2013-03-12
COMMONWEALTH v. GABRIEL G., a juvenile.
By the Court (COHEN, GRAINGER & MILKEY JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Nearly two decades after the juvenile was adjudicated delinquent at age sixteen on a charge of rape, a judge of the Juvenile Court allowed the juvenile's motion for a new trial. Before us is the Commonwealth's appeal. We reverse.
By the time the motion was filed, the juvenile now an adult, had been charged twice with failing to register as a sex offender. The first charge was dismissed, and the second charge remained open.
Background. The docket sheet reflects the following. On February 20, 1992, the juvenile was arraigned on a charge of rape of a child with force, and, as shown by a check mark, entered a plea of “not delinquent.” On March 5, 1992, the juvenile was adjudicated delinquent on the amended charge of rape. Another check mark appears beside the printed words “new plea,” and a notation of “S/F” appears next to the printed word “Finding.” Although the juvenile contends that it is unclear (and he does not recall) whether the case was resolved by plea or trial, the docket suggests that it was resolved by a plea wherein the judge found sufficient facts to support an adjudication of delinquent on the lesser charge. In any event, regardless of the precise nature of the proceedings, the case was concluded on March 5, 1992, two weeks after arraignment, and the juvenile was then committed to the Department of Youth Services (DYS). On November 17, 2010, the juvenile filed a motion for a new trial, arguing that his counsel provided constitutionally ineffective assistance in various respects, and that his grandmother, who was with him in court on March 5, 1992, was not an appropriate person with whom to consult about waiving his rights because she was the legal guardian of both the juvenile and the victim, the juvenile's five year old sister. As a result of the lapse of time, no transcript or recording of the proceedings was available. The initial record before the motion judge was comprised only of the docket, complaint, police report, and affidavits attached to the juvenile's motion.
This understanding of what transpired on March 5, 1992, is consistent with the averments of the juvenile and his grandmother that, on that day, there were no potential witnesses present other than the juvenile's grandmother.
During the two-week period between arraignment and disposition, the juvenile was held in custody. The record does not reflect why the juvenile was not released on bail, which had been set at $500 cash/$5,000 surety.
On the same day, the juvenile had two other cases resolved: one involving a single count of receiving stolen property, and another involving one count of larceny under $250 and one count of malicious destruction of property over $250.
The judge allowed an evidentiary hearing, at which the only witness was the juvenile's counsel at the time of the delinquency proceedings. Counsel testified that, in 1992, he was appointed to represent the juvenile, but that he had no memory of the juvenile or his case and no longer had any files or records relating to the case. On cross-examination by the Commonwealth, counsel testified to his typical practice with respect to contacting and arranging to see a new client. He also testified that there could be strategic reasons for concluding a case within a short period of time, but, when he was asked to elaborate, the judge sustained the juvenile's objection and did not permit the inquiry.
The judge voiced strong concerns even before counsel testified. At the inception of the hearing, the judge stated that he did not “understand how this case went forward,” and that he “[found] very clearly there was a conflict of interest for the grandmother who was the legal guardian of both the alleged victim and the defendant.” He also expressed dismay that “this was a two-week case from start to finish, from arraignment ... to adjudication.”
At the conclusion of the hearing, the judge allowed the juvenile's motion from the bench, giving three reasons for his decision: (1) counsel was ineffective because, at a time when the two-tier trial system still existed, counsel did not pursue a trial de novo, (2) counsel was ineffective because only two weeks transpired between arraignment and disposition, and (3) the juvenile was deprived of his right to consult with an independent adult, because his grandmother was the legal guardian of both the juvenile and the victim.
Discussion. “The defendant bears the burden to show that he is entitled to a new trial based on a claim that he was denied the effective assistance of counsel.” Commonwealth v. Yardley Y., 464 Mass. 223, 230 (2013). Here, the defendant did not meet that burden. The failure to pursue a de novo trial, even in a juvenile rape case, is not per se ineffective; rather, it depends upon the specific circumstances. Commonwealth v. Fabian F., 83 Mass.App.Ct. 394, 398 (2013). The juvenile adduced no specific evidence from which it could be concluded that forgoing a de novo trial was unreasonable in the circumstances; nor did he allege, much less demonstrate, any prejudice. By the same token, the juvenile did not carry his burden of showing, based upon particular facts and circumstances, that his counsel was ineffective in resolving the case two weeks after arraignment, or that he suffered any prejudice.
The juvenile failed even to aver in his affidavit that he would have proceeded differently had counsel advised him of his right to a de novo trial, thus calling into question whether he was entitled to an evidentiary hearing on this issue. See id. at 400.
Again, such behavior is not per se ineffective. Notably, counsel testified at the hearing that there could be strategic reasons for a speedy resolution of a juvenile's case, and it was error for the judge to preclude further exploration of the subject. Furthermore, sound tactical reasons are not difficult to imagine. For example, if the evidence against a juvenile was very strong, and, as here, the juvenile was in custody, counsel reasonably could have concluded that it was in the juvenile's best interest to resolve the matter promptly in order to gain access to treatment available only after disposition. Cf. Commonwealth v. Fabian F., supra at 399. Quickly pleading to a lesser offense also may have spared a juvenile subject to the pre–1996 transfer hearing process from the risk of prosecution as an adult. See Commonwealth v. Dale D., 431 Mass. 757, 758–759 (2000).
Finally, the judge erred in concluding that the defendant was deprived of the opportunity to consult with an informed adult. “When a juvenile is fourteen or older and waiving a constitutional right, he should have a consultation with ‘the parent, interested adult, or attorney’ (emphasis supplied).” Commonwealth v. Yardley Y., supra at 227. Thus, even if we were to assume that it could be concluded on this record that the juvenile's grandmother had a disqualifying conflict of interest that prevented her from being an appropriate advisor, the defendant's counsel fulfilled that role.
Conclusion. Because the judge's decision lacked support in the record and was based upon errors of law, the order granting the defendant a new trial must be vacated.
So ordered.