Opinion
16-P-864
04-14-2017
COMMONWEALTH v. Ronald D. KYSE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Ronald D. Kyse, appeals the denial of his motion for new trial. He argues that, regarding his guilty plea to one indictment for assaultive burglary, newly discovered evidence provided him with a ground for relief of which he was not previously aware, and that the judge abused her discretion in deeming the argument waived. He further contends that his plea counsel was ineffective for failing to obtain the since-discovered evidence before he pleaded guilty in 2004. We affirm.
The defendant pleaded guilty in 2004 to several charges stemming from his stabbing of a neighbor, including assaultive burglary. This appeal comes after this court affirmed the Superior Court's 2014 denial of the defendant's previous motion to withdraw guilty pleas. The basis for the present appeal is phone records that were obtained by the defendant's appellate counsel on September 22, 2015, four months after this court affirmed the denial of his prior motion for new trial. The phone records detail calls made by the roommate of the victim, and the defendant now essentially contends that those phone records prove that he did not enter the victim's apartment at night time—an essential element to the assaultive burglary charge under G. L. c. 266, § 14.
See Commonwealth v. Kyse, 87 Mass. App. Ct. 1120.
"Any grounds for relief not raised by the defendant in his original or amended motion for a new trial are ‘waived unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion.’ " Commonwealth v. Roberts, 472 Mass. 355, 359 (2015), quoting from Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Berrios, 447 Mass. 701, 708 (2007) (postsentence motion to withdraw guilty plea treated as motion for new trial). Due to the timing of his receipt of the phone records in question, the defendant argues that they should be considered newly discovered evidence and that this is his first opportunity to raise the issue.
The judge determined that the defendant's claims raised in the present motion for new trial were waived because it was "clear that the defendant could have obtained [the phone records] and could have argued this issue in his first motion for new trial." See Commonwealth v. Balliro, 437 Mass. 163, 166 (2002). The judge additionally elected not to exercise his discretion to consider the issue, finding, after sober reflection, that the defendant's argument presented no risk of a miscarriage of justice. We "examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Brescia, 471 Mass. 381, 387 (2015), quoting from Commonwealth v. Wright, 469 Mass. 447, 461 (2014).
We conclude that there was no error in the judge's ruling. Although the existence of the phone records was noted by the Commonwealth in the pretrial conference report in 2003, neither the defendant nor his plea counsel sought to obtain them prior to entry of his guilty pleas. As such, there was no error of law in the judge's determination that the grounds for the defendant's motion for new trial could have been raised in his 2014 motion, nor was there error in the judge's failing to exercise his discretion and consider the argument. The defendant's arguments were properly deemed to have been waived. See Roberts, supra.
Though the defendant's arguments were waived, we still review them to determine whether a "substantial risk of a miscarriage of justice" exists. Commonwealth v. Lavoie, 464 Mass. 83, 89 (2013). A substantial risk of a miscarriage of justice will be found if "we were left ‘with a serious doubt that the defendant['s] guilt had been fairly adjudicated.’ " Commonwealth v. LeFave, 430 Mass. 169, 175 (1999), quoting from Commonwealth v. Amirault, 424 Mass. 618, 647 (1997). Here, the defendant's plea colloquy clearly indicates that his guilty pleas were made voluntarily and intelligently and entered despite his knowledge that the time of entry into the apartment could be a potential defense. , Accordingly, we discern no substantial risk of a miscarriage of justice stemming from his later receipt of the phone records. See Amirault, supra at 650-651.
The defendant acknowledged that he had time to discuss his case with counsel, "including [his] rights, [his] defenses and possible consequences of a guilty plea."
The fact that the defendant was indicted for breaking and entering during the day time, assaultive burglary, and entering in the night time without breaking indicated to the defendant from the start that the timing of his entry to the apartment would be a live issue at trial. In voluntarily and intelligently pleading guilty, he waived this potential defense.
--------
Similarly, while we agree with the judge that the defendant's ineffective assistance of counsel argument was waived, we conclude that argument would have failed regardless. See Balliro, supra (failure to raise ineffective assistance of counsel claim in first motion constitutes waiver). We review this claim to first determine whether "there has been serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If that first prong is found, we then determine "whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Ibid. The defendant admitted that he was aware that he would have a possible defense against the armed burglary charge in his previous motion to vacate his guilty pleas, noting in his affidavit that he had "waived what [he] understood to be a substantial defense grounded on whether [his] actions occurred during the daytime or at night." His knowledge of this potential defense, therefore, indicates that his counsel's failure to procure the phone records at issue did not deprive him of said defense. See ibid. As such, the defendant has failed to demonstrate that his counsel provided ineffective assistance.
Order denying motion for new trial affirmed.