Opinion
15-P-1285
04-11-2017
COMMONWEALTH v. Jonathan GONZALEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion for a new trial, arguing that the judge abused his discretion when he denied the motion. Essentially for the reasons explained in the judge's thoughtful memorandum, we affirm.
On December 9, 2010, the defendant was charged in the District Court with violation of an existing abuse prevention order that his wife had obtained against him, pursuant to G. L. c. 209A (restraining order). On December 30, 2010, he was charged with a second violation of that same order. On July 29, 2011, then represented by counsel, the defendant admitted to sufficient facts on both charges. As to each charge, he was sentenced to six months in a house of correction to run concurrently with any sentence then being served; the six months was deemed served because he had been held awaiting trial.
Almost four years later, on March 23, 2015, the defendant filed a motion for a new trial. In the motion, he alleged ineffective assistance by plea counsel for failing to investigate the issue of his criminal responsibility. Specifically, the defendant claimed that counsel had failed to request a psychological evaluation, or to obtain a copy of an evaluation conducted earlier, to assess his mental capacity at the times he violated the restraining order. According to the defendant, this claimed lack of criminal responsibility had rendered his plea unknowing and unintelligent. On April 30, 2015, after a hearing, the judge, who was also the plea judge, denied the motion; the defendant timely appealed.
When a defendant appeals the denial of his motion for new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), we review "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 350 (2009), quoting from Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006). In addition, when the motion is based on a claim of ineffective assistance, the defendant must demonstrate that counsel's behavior fell "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. Comita, 441 Mass. 86, 90 (2004), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974).
In the defendant's supporting affidavit, he claimed that, in 2004, he was involved in a car accident and suffered a traumatic brain injury. He also asserted that, during the pendency of a criminal charge in another jurisdiction, he had undergone an evaluation by his own expert who determined that he was not criminally responsible in that case. According to the defendant, he had provided plea counsel with the expert's report and "urged" him to present the evaluation in this case, and counsel had declined to do so. The defendant further averred that, while incarcerated on another case, he felt he "had to plea to these cases because [he] was eligible for bail in another case and hoped to be released."
No affidavit from plea counsel was filed in support of the motion. Instead, appellate counsel provided an affidavit stating that he had made several attempts, without success, to obtain from plea counsel an affidavit containing that counsel's recollection as to the circumstances surrounding the defendant's plea. The motion judge acknowledged in his findings that plea counsel did not provide an affidavit denying the defendant's statements about his potential mental health defense and, as a result, the judge accepted as true the defendant's declaration that he had told plea counsel of that potential defense.
During the motion hearing, the judge determined, and the defendant agreed, that the defendant's argument was not the lack of criminal responsibility for violating the abuse prevention order, but, rather, that the defendant had lacked knowledge that the order was in effect at the time that he admittedly sent from jail the two letters to his wife. The defendant stated that he thought he sent the letters on the date that the restraining order was due to end.
Although the defendant was represented by counsel at the motion hearing, he conversed freely and directly with the judge and confirmed that his lack of knowledge of the effectiveness of the abuse prevention order was "[his] defense the whole time."
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The judge observed that the defendant had written in one of his letters that the restraining order was to expire within three months, thus permitting the judge to conclude that the defendant did know of the existence of the order and its restrictions. He also noted that, at the time of the colloquy, the defendant was "lucid, responded appropriately and was aware of his circumstances." The defendant acknowledged at the plea hearing that he had sent the letters, but said he thought he sent the second letter after the order had expired, which was not, in fact, the case. The judge found that the defendant's reasoning demonstrated a "very nuanced thought process"; he encouraged the defendant to go to trial but, after further discussion, the defendant decided to plead guilty to violations of the no contact portion of the restraining order. The judge also stated that he would have addressed immediately at the plea hearing any issue the defendant raised about counsel not investigating mental health issues. Significantly, the judge noted that counsel conceded at the motion hearing that the mental health defense that was offered in the other criminal case was "apparently rejected by the fact finder, as the defendant was convicted" of those charges.
Finally, the judge determined that there were pragmatic reasons for the defendant to plead guilty, because, had he gone to trial, rather than plead guilty to the charges, he could have received a sentence of as much as two and one-half years in a house of correction, rather than six months committed and deemed served. As stated by the judge, "The decision to plead guilty and ask for the sentence imposed was a sound and wise method of limiting the defendant's exposure to a much harsher disposition." Even if the defendant could, on this record, satisfy the first prong of Saferian, that is, to show that plea counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer," Saferian, 366 Mass. at 96, he has failed to show that "he would have rejected the plea but for the incompetent advice of counsel." Commonwealth v. Pike, 53 Mass. App. Ct. 757, 763 (2002). He therefore fails to meet his burden. See Saferian, 366 Mass. at 96. We see no error, and certainly no abuse of the judge's considerable discretion, in the judge denying the defendant's motion for a new trial.
Order denying motion for new trial affirmed.