Opinion
21-P-64
12-30-2021
COMMONWEALTH v. Scott KING.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
More than thirty years after the death of Jeffrey Thompson, the defendant, Scott King, filed a motion to withdraw his plea to involuntary manslaughter claiming that his attorney was ineffective. The motion was denied, and this appeal followed. We affirm.
Background. On June 20, 1988, the defendant was indicted by a grand jury for first degree murder in the death of Jeffrey Thompson. Part way through a jury trial, the defendant pleaded guilty to involuntary manslaughter in exchange for an eighteen to twenty year prison sentence. In January 1993, the defendant filed a pro se motion to withdraw his plea. His motion for the appointment of counsel was allowed. After conducting some discovery, his attorney (plea counsel) filed an amended motion for a new trial with supporting affidavits. After a four day evidentiary hearing, the motion was allowed, and the defendant was released on bail. The Commonwealth filed a notice of appeal. While the appeal was pending, the defendant pleaded guilty to involuntary manslaughter, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), in exchange for a sentence of time served. Over twenty three years later, in May 2019, the defendant filed another motion to withdraw his plea, which was denied.
Discussion. We treat a motion to withdraw a guilty plea as a motion for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). We review a judge's decision on a rule 30 (b) motion only for a "significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "Absent ... constitutional concerns, ‘a judge should only grant a postsentence motion to withdraw a plea if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth.’ " Commonwealth v. Roberts, 472 Mass. 355, 360 (2015), quoting Commonwealth v. DeMarco, 387 Mass. 481, 486 (1982).
1. Ineffective assistance of counsel. "Where, as here, the defendant argues that plea counsel was ineffective ... [he] bears the burden of showing that his attorney's performance fell measurably below that which might be expected of an ordinary fallible lawyer, and that he suffered prejudice because of his attorney's unprofessional errors" (quotations omitted). Commonwealth v. Al Kenani, 100 Mass. App. Ct. 288, 291-292 (2021).
a. Failure to file motion to dismiss. The defendant argues that plea counsel's failure to file a motion to dismiss the indictment for lack of evidence constituted ineffective assistance of counsel, because the evidence before the grand jury did not establish that Thompson died of homicidal violence. "We review to determine whether [plea] counsel's failure to file a motion to dismiss the indictment[ ] was ineffective assistance and deprived the defendant of an otherwise available substantial defense." Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 173 (2001), citing Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "That, in turn, requires determination of whether a motion to dismiss the indictment[ ] would have been allowed." Ortiz, supra, at 173-174.
Here such a motion would have failed because the grand jury heard "sufficient evidence to establish the identity of the accused and probable cause to arrest him" (citation omitted). Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). An autopsy revealed that the cause of death was asphyxia due to airway obstruction by foreign material and vomit. The grand jury heard, among other evidence, that a pack of Marlboro cigarettes was lodged in Thompson's mouth, significantly blocking his airway and the part of the throat containing the gag reflex. A reasonable inference from this evidence is that the insertion of the pack of cigarettes into Thomson's mouth and toward his throat triggered his gag reflex and blocked the emission of vomit, causing Thompson to die of asphyxiation. See Commonwealth v. Robinson, 48 Mass. App. Ct. 329, 339 (1999), citing Commonwealth v. Scott, 408 Mass. 811, 822-823 (1990) ("foreseeable that gag would cause death by asphyxia").
The grand jury also heard evidence of the statements that the defendant made to at least three people that both directly and indirectly implicated him in Thompson's death. Any one of these statements, coupled with Thompson's death, was sufficient to sustain the indictment. See Commonwealth v. Forde, 392 Mass. 453, 458 (1984) (in homicide evidence corroborating confession need only tend to show victim is dead). And there was evidence of the defendant's consciousness of guilt, including that he hid Thompson's body and subsequently buried it. He also asked a friend to "get rid of" Thompson's glasses and keys. See Commonwealth v. Conkey, 443 Mass. 60, 74 (2004) (consciousness of guilt evidence "may be considered along with all other evidence"). See also Commonwealth v. Knight, 37 Mass. App. Ct. 92, 99 (1994) ("concealing the body [and] lying about the victim's whereabouts" characterized as "compelling evidence of consciousness of guilt"). For all of these reasons, plea counsel was not ineffective for failing to file a motion to dismiss the indictment for lack of evidence.
b. Counseling defendant to plead guilty. The defendant next argues that plea counsel was ineffective in counseling him to plead guilty. The defendant must demonstrate a reasonable probability that but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial. See Commonwealth v. Lastowski, 478 Mass. 572, 577 (2018). "Additionally, the defendant must convince the court that a decision to reject the plea bargain would have been rational under the circumstances" (quotation omitted). Id.
The only basis for the defendant's assertion that plea counsel overrode his desire to "take this case to trial" was the defendant's own affidavit, which the motion judge discredited. See Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015) (judge not required to accept as true allegations in defendant's affidavit). Additionally, the motion was not supported by an affidavit from plea counsel. See Commonwealth v. Lys, 481 Mass. 1, 6 (2018) (judge permitted to infer absence of affidavit from plea counsel undermined defendant's credibility). Moreover, while the Commonwealth was not required to supplement the record below, it submitted an affidavit of the trial prosecutor who made detailed notes contemporaneously during the plea hearing. These notes, which reflected that the judge ensured that the defendant had sufficient time to discuss the case with plea counsel, contradicted the defendant's affidavit. And notably, the defendant was sentenced to time served thereby avoiding the risk of a lengthy prison sentence, a fact which demonstrated the rationality of his decision to plead to involuntary manslaughter and the irrationality of proceeding to trial. Cf. Commonwealth v. Furr, 454 Mass. 101, 112 (2009) ("the highly generous sentence recommendation that the defendant received in light of the offenses with which he was charged strongly supports the conclusion that the defendant chose voluntarily to plead to those offenses").
2. Factual basis to support pleas. The defendant next contends that the evidence introduced at the plea hearing failed to establish that the defendant caused Thompson's death and was therefore insufficient to support the conviction. A guilty plea requires a "strong factual basis" for the charge, Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015) (quotation omitted), but it does not require that there be proof beyond a reasonable doubt. See Commonwealth v. DelVerde, 398 Mass. 288, 292 (1986).
Due to the passage of time, and the defendant's dilatoriness, there is no transcript of the plea hearing. Thus, the presumption of regularity and the policy of finality place a requirement upon the defendant to show "some basis that adequately supports a negation of his conviction[ ] [quotation omitted]." Commonwealth v. Hoyle, 67 Mass. App. Ct. 10, 14 (2006). As discussed supra, the prosecutor made detailed, contemporaneous notes of the plea hearing which demonstrated that the plea judge determined that there was a sufficient factual basis for the plea. This accords with the presumption of regularity. The defendant's conclusory statements do not overcome this presumption. Moreover, the defendant did not provide any reason why allowing his motion outweighed the prejudice to the Commonwealth. See Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 54 (1997).
3. Alford plea. The defendant argues that Alford pleas should be abolished as inconsistent with public policy, and that he should not have been permitted to enter such a plea. This argument ignores our jurisprudence, which permits such pleas. See Commonwealth v. Nikas, 431 Mass. 453, 455 (2000) ("a defendant may make a plea of guilty accompanied by a claim of innocence in accordance with the standards of North Carolina v. Alford" [quotation and citation omitted]). See also, e.g., Commonwealth v. Ellsworth, 485 Mass. 29, 30 n.1 (2020) ; Commonwealth v. McGuirk, 376 Mass. 338, 343 (1978). And, as discussed supra, the defendant benefitted significantly from the terms of the plea.
Order denying motion for new trial affirmed.