Opinion
16-P-956
04-28-2017
COMMONWEALTH v. Justin HISER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Justin Hiser, pleaded guilty to murder in the second degree in 2011. In 2015, he filed a motion to withdraw his guilty plea and for a new trial, which was denied. He appeals from that denial. We affirm.
The defendant was indicted for murder in the first degree after fatally stabbing the mother of his two children in the parking lot outside her place of work and fleeing the scene. The Commonwealth ultimately chose to reduce the charge to murder in the second degree, recognizing the defendant's potential defense of diminished capacity based on the effect of a medication he was taking. In his motion to withdraw his guilty plea and for a new trial, the defendant raised four arguments: (1) he was not competent to plead guilty at the time of his plea; (2) his absence from two pretrial conferences violated his right to be present; (3) he lacked criminal responsibility at the time of the murder; and (4) his plea was not made intelligently. His appeal, in essence, reiterates those arguments.
We note that the defendant received a significant benefit in pleading guilty to the reduced charge of murder in the second degree.
The judge denied the defendant's motion on the basis of "the reasons stated in the Commonwealth's opposition." There, the Commonwealth argued that the record established that the defendant's plea was made knowingly and voluntarily, that there was no evidence of the defendant's absence from the pretrial conferences nor that any absence prejudiced him, that the defendant's preparation to raise a lack of criminal responsibility defense does not invalidate his plea, and that the judge properly advised the defendant of his rights at the time of his plea thus making it knowing and intelligent.
We review the judge's denial of the defendant's motion to withdraw his guilty plea and for a new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). The central issue on appeal is whether the defendant was competent to plead guilty, which we test in the same way as competence to stand trial. See Commonwealth v. Robbins, 431 Mass. 442, 445 (2000). "The standard for determining competency to stand trial is ‘whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.’ " Ibid., quoting from Commonwealth v. Russin, 420 Mass. 309, 317 (1995). We "give substantial deference" to the judge's findings of fact as they relate to competency. Robbins, supra, quoting from Commonwealth v. Lyons, 426 Mass. 466, 469 (1998).
We conclude that there was no error in the judge rejecting the defendant's argument that he was incompetent to plead guilty. To support his claim that he was prepared to offer a lack of criminal responsibility defense, the defendant provided an affidavit and two unsigned reports, drafted by experts he had hired prior to his plea, that suggested he was not criminally responsible for the murder. This planned defense did not bear on his claim that he was not competent to enter a plea. See Robbins, supra (despite affidavits from defendant and his mother, judge found "nothing in the record before us to substantiate the defendant's ex post facto assertion that he was not competent to plead guilty"). Furthermore, the judge's thorough and proper plea colloquy yielded cogent responses from the defendant, providing ample support for the judge's determination that he was competent at the time of the plea. As such, as it relates to his competency argument, there was no error in the judge's denial of the motion. See Lyons, supra.
Similarly, we conclude that the defendant failed to demonstrate that his purported absence from pretrial conferences held on August 27, 2008, and August 16, 2011, violated his right to be present. See Robinson v. Commonwealth, 445 Mass. 280, 285 (2005). Massachusetts Rule of Criminal Procedure 11(a), as appearing in 442 Mass. 1509 (2004), provides that the "defendant shall be available for attendance at the pretrial conference" (emphasis supplied). By contrast, the rule states that "the court shall order the prosecuting attorney and defense counsel to attend." On the basis of that language, we discern no requirement that a defendant must be present for all pretrial conferences, a position shared by the judge. The Reporters' Notes to Mass.R.Crim.P. 18(a), 47 Mass. Gen. Laws Ann. at 449-450 (Thomson/West 2006), which provide that the defendant has the right to be present at all "critical stages" of criminal proceedings, specify that "the detailing of what stages are deemed critical is left to judicial determination." Further, rule 18 (a)(3) specifies that "[a] defendant need not be present ... at any proceeding where evidence is not to be taken." "It is not necessary that the defendant attend the actual conference unless requested by the parties." Cypher, Criminal Practice and Procedure § 23:7 at 257 (4th ed. 2014). Accordingly, we conclude that there was no error in the judge's ruling that the defendant did not demonstrate that his "substantial rights [were] at stake," Robinson, supra, quoting from Reporters' Notes to Mass.R.Crim.P. 18(a), at either pretrial conference.
Notwithstanding the fact that the defendant also offered no reliable proof that he was, in fact, absent from the pretrial conference, we will address the issue.
Finally, the defendant contends that a lack of criminal responsibility should invalidate his plea and that his plea was not intelligent. Again the defendant offers no credible support for the claim. The fact that he was prepared to offer a lack of criminal responsibility defense had the case gone to trial is ultimately irrelevant to the validity of his plea. See Robbins, 431 Mass. at 445-446. The record reflects that the defendant's plea was entered knowingly and voluntarily, and that he was fully aware of the rights that he was surrendering by pleading guilty. As such, there was no error in denying the motion.
Notably, the judge inquired of the defendant during his plea colloquy whether he understood that he had "a right to present any evidence you may have in your own defense and call any witnesses you may have in your own defense," to which the defendant responded "yes." The judge further inquired: "And do you understand you give up those rights by pleading guilty?" The defendant again responded affirmatively. Finally, the defendant affirmed that he understood that, in pleading guilty, "this case essentially comes to an end. Any motions that may have been filed in your case, if there were any that were acted upon by the court, you would lose appellate rights to. Any other motions that have not been acted upon, whether they were simply filed or even considered to be filed, you're waiving your rights to."
Order denying motion to withdraw guilty plea and for new trial affirmed.