Opinion
14-P-1767
10-09-2015
COMMONWEALTH v. GERALD GLOVER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On September 14, 2010, the defendant entered guilty pleas to a host of charges pending against him in two separate cases. The pending charges in the main case included two counts of armed home invasion, two counts of armed assault with intent to murder, two counts of committing a felony while possessing a firearm, and two counts of assault and battery by means of a dangerous weapon. There were three possessory firearms offenses in the second case. By pleading guilty to some but not all of the pending charges, the defendant received concurrent State prison sentences the longest of which were ten to fifteen years, along with concurrent sentences to a house of correction for a few of the offenses.
Two and one-half years later, on April 22, 2014, the defendant filed a motion pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), to withdraw his guilty pleas, claiming that he received ineffective assistance from plea counsel. The same judge who had accepted the guilty pleas denied the motion (except in one small particular), without an evidentiary hearing (none was sought). Before us is the defendant's appeal. We affirm.
One part of the motion asserted that counsel was ineffective in allowing the defendant to plead guilty to a charge of improper storage of a firearm that was unsupported by evidence. The Commonwealth conceded the point and the judge agreed, ordering the conviction vacated and the indictment dismissed. We do not opine on this aspect of the order on the defendant's motion.
Background. At the plea hearing, the defendant admitted to the following facts of the main case. On April 26, 2009, he and three others, Ramel Moody, Rashard Brown, and Robert Holderman, rushed into the home of Carl Rose. All four assaulted Rose, who watched the defendant playing with a knife and a box cutter during this episode. With Holderman pointing a gun at Rose, the group took him to the home of Ricky Sambuco. The four assailants rushed into Sambuco's home. Holderman and Brown beat Sambuco, and Brown stabbed him and struck him with a gun. Sambuco, who sustained seven stab wounds (including three to the chest) and a possible gunshot wound, was classified as a level one (most serious) trauma patient.
As to the second case against the defendant, at the plea hearing he admitted to being found in possession of a firearm and ammunition without a license or firearm identification card during a protective patfrisk conducted by police outside of a liquor store on March 10, 2010.
Prior to entering his pleas, the defendant was told by counsel that he faced a mandatory minimum sentence of twenty years in prison for each of the two separate armed home invasion charges, and that he should accept a plea agreement. Plea counsel failed to mention that, although twenty years is the mandatory minimum prison sentence for armed home invasion, the trial judge has discretion to impose a sentence of probation, as explained in Commonwealth v. Zapata, 455 Mass. 530, 535 (2009).
Discussion. A motion to withdraw a guilty plea is treated as a motion for new trial. Commonwealth v. Furr, 454 Mass. 101, 106 (2009). A judge may grant the motion only when it appears "that justice may not have been done." See Commonwealth v. Scott, 467 Mass. 336, 344 (2014). We review the judge's ruling for a significant error of law or abuse of discretion. Commonwealth v. Alcide, 472 Mass. 150, 158 (2015).
The defendant argues that counsel's failure to advise him of the potential for a probationary sentence on the home invasion charges amounted to ineffective assistance of counsel and coerced him into accepting the plea deal. We analyze counsel's behavior under the familiar two-pronged Saferian test, considering first whether counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer," and, if so, "whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Here, the judge found that counsel had misstated the law to the defendant by referring to a "mandatory" twenty-year sentence. However, the judge also concluded in his discretion that this conduct did not fall "measurably below" that of an "ordinary fallible lawyer." As the judge explained, it was extremely unlikely that the defendant would have received probation for the two armed home invasion charges, given that the incident involved such serious conduct and injuries. For that reason, plea counsel's advice was not materially deficient. Furthermore, in light of the number and severity of the charges and the strength of the Commonwealth's evidence, it was a reasonable tactical decision for counsel to pursue and recommend the plea agreement. See Commonwealth v. Glover, 459 Mass. 836, 842-843 (2011) (strategic decision of counsel is ineffective only if manifestly unreasonable when made).
In any event, the defendant has not shown that better work by counsel would have achieved a more favorable outcome. See Commonwealth v. Linton, 456 Mass. 534, 556 (2010). The defendant's contention that he could have received a better plea deal is speculative and undermined by the sheer number and nature of the charges, as well as the advantageous terms of the deal that he accepted. The defendant obtained the dismissal of two armed home invasion charges, as well as two firearms charges carrying mandatory five-year minimum sentences. In these circumstances, the judge could conclude in his discretion that a decision to reject a ten- to fifteen-year prison term would not have been rational in the circumstances.
The defendant argues that because the judge found that plea counsel inaccurately explained the law, the defendant need not show prejudice. However, this is not a case where counsel's advice was patently wrong and called into question the voluntariness and intelligence of the plea. Compare Commonwealth v. Fernandes, 390 Mass. 714, 720 (1984); Commonwealth v. Walker, 443 Mass. 867, 871-873 (2005). Furthermore, the defendant admitted to facts underlying the charges, and indicated during the colloquy that his attorney had informed him of what the Commonwealth would have to prove on each indictment. These sworn statements weigh against a determination that his plea was not voluntary and intelligent. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 634 (2007).
Contrary to the defendant's position, the judge did not ignore potentially exculpatory facts. The judge was entitled to discredit the defendant's self-serving affidavit and to conclude that "his decision to plead was based on the assessment of the evidence against him."
So much of the order of August 1, 2014, as denies the defendant's motion to withdraw his guilty pleas is affirmed.
So ordered.
By the Court (Cohen, Carhart & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 9, 2015.