Opinion
10-P-1601
10-11-2011
COMMONWEALTH v. GLENN P. MONIZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
With the advice of counsel the defendant, Glenn P. Moniz, pleaded guilty in 1970 to murder and armed robbery. An earlier motion to withdraw his guilty plea was denied, and that decision was upheld in this court in a memorandum and order pursuant to our rule 1:28. See Commonwealth v. Moniz, 53 Mass. App. Ct. 1101 (2001). In 2006, Moniz's most recent motion to withdraw his guilty plea was denied by a judge of the Superior Court without an evidentiary hearing. Moniz filed a timely appeal, arguing that the motion judge improperly denied his motion for a new trial without conducting an evidentiary hearing and that his previous attorneys at the earlier motion for a new trial were ineffective. We affirm.
Background. On March 1, 1970, William Cavanaugh was shot and killed in a Boston hotel room rented by the defendant and one John Hoffmaster. Both men were later arrested, on March 6, 1970, for robbing a bank at gunpoint. Moniz was indicted for first degree murder and armed robbery. Represented by then Attorney A. David Mazzone (who later become a judge of the Superior Court and then a judge of the United States District Court for the District of Massachusetts), Moniz pleaded guilty to both charges in order to serve the sentences concurrently. He was sentenced to a mandatory term of life, with parole eligibility after fifteen years.
In 1976, Moniz escaped from prison and was not recaptured until 1986. That year he filed a request for a transcript of his 1970 plea hearing. However, by that time, the stenographic records of the plea hearing had been destroyed pursuant to Supreme Judicial Court Rule 1:12, as appearing in 382 Mass. 717 (1981). In 1993, Attorney Charles Rankin investigated the merits of Moniz's appellate case to determine whether counsel should be appointed. He interviewed then-Judge Mazzone and Judge Vincent Brogna, the Superior Court judge who had presided at the original plea hearing. Neither judge remembered Moniz's plea. Both reportedly admitted that colloquies were less formal in the 1970's. Based on Attorney Rankin's interviews and a review of the case, counsel was appointed.
According to Attorney Rankin's affidavit, Judge Mazzone said that judges were 'less conscientious in conducting plea colloquies in 1970,' and that Judge Brogna went through colloquies 'like a knife through butter.' Judge Brogna reportedly told Rankin that he engaged in short colloquies at that time and was certain there were none regarding the relinquishing of constitutional rights. He said he asked defendants several questions to make sure they knew what they were doing. These questions included whether they had discussed the case with a lawyer, were satisfied with the lawyer's advice, realized that they were admitting to having committed the crime, and knew of the punishment.
One of the first attorneys assigned to Moniz was Attorney Lawrence Rizman who, between 1990 and 1995, filed two separate motions to withdraw the defendant's guilty plea. He subsequently withdrew from the case, apparently without providing Moniz with a forwarding address or copies of pleadings filed. In 1997, the Commonwealth filed an opposition to the motions, supported by affidavits from Judges Brogna and Mazzone.
Judge Mazzone stated in his affidavit that as an attorney, he would not have advised a client to plead guilty without informing him of his constitutional rights. Judge Brogna stated in his affidavit that it was standard practice to inform defendants of their constitutional rights, and that he was especially diligent in homicide cases. Judge Brogna also stated that he would not have accepted a defendant's plea if he was not sure that the defendant was making a voluntary and knowledgeable decision.
In 1999, Attorney Willie Davis was appointed to represent Moniz. He filed another motion to withdraw Moniz's guilty plea, along with Rankin's affidavit. See note 1, supra. Judge Vieri Volterra denied the motion and rejected Attorney Rankin's affidavit.
Moniz also contends that Attorney Davis failed to inform him beforehand that a hearing was scheduled on his motion to withdraw his guilty plea.
In a thoughtful memorandum of decision, Judge Volterra concluded, 'Based on personal knowledge, which has not been adequately rebutted by any admissible evidence, I find Mazzone to have been an able criminal defense attorney who certainly would have demanded a constitutionally valid guilty plea. Moreover, again based on personal knowledge, I know Justice Brogna to have been a competent and experienced criminal session judge.' Judge Volterra 'question[ed] the accuracy of Rankin's affidavit, as questions as to the validity of the plea colloquy which were not resolved by Attorney Mazzone or Justice Brogna may simply be due to their inherent weakness of memory and failure of recollection.' Apparently, Judge Volterra never saw the affidavits of Judges Mazzone and Brogna. He described the evidence before him as 'a self serving affidavit from the defendant and an affidavit [Rankin's] based primarily on hearsay.'
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In 2005, the defendant filed the instant motion to withdraw his guilty plea pro se. The Commonwealth opposed the motion, again offering the affidavits of Judges Mazzone and Brogna. See note 2, supra. A judge of the Superior Court denied the motion without a hearing, with the endorsement,
'After a complete review of this motion and its submissions and the Commonwealth's memorandum in opposition to defendant's motion to withdraw his guilty plea and for new trial, and a complete review of the entire court file, motion is DENIED for the reasons cited in the Commonwealth's opposition to the motion. The court calls attention to the affidavits of Judges Brogna and Mazzone dated in January, 1997. There is no record of the guilty plea hearing (35 years ago). These two affidavits indicate that proper practices were followed in the plea colloquy. These two affidavits indicate that all of Moniz's rights were explained to him, that he understood them and that his plea was made voluntarily with full knowledge of its consequences.'
Discussion. Motion for a new trial. The defendant's primary argument is that he received ineffective assistance of counsel in his first hearing because Attorney Davis did not interview or obtain affidavits from Judges Mazzone and Brogna. Under the familiar Saferian standard, this showing is inadequate. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant cannot show that obtaining these affidavits would have accomplished 'something better' for him. See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Indeed, the Commonwealth offered affidavits from the same two men, and the motion judge principally relied on those affidavits in denying the defendant's present motion.
The defendant's second argument, that his lawyer failed to consult with him, returns to the same point -- that Attorney Davis 'repeatedly neglected or refused to act upon Moniz's requests and pleadings to interview either Mazzone or Brogna.' His third point is essentially the same.
Finally, the defendant argues that it was error for the judge to deny his motion without an evidentiary hearing. ''There is no constitutional error in deciding the motion for a new trial on affidavits' and this court has held that the question whether to hold an evidentiary hearing is 'left largely to the sound discretion of the judge.' Commonwealth v. Stewart, 383 Mass. 253, 257, 259 (1981). See Commonwealth v. DeVincent, 421 Mass. 64, 69 (1995). An evidentiary hearing is required only where a 'substantial issue' has been raised and, '[i]n determining whether a 'substantial issue' meriting an evidentiary hearing . . . has been raised, we look not only at the seriousness of the issue asserted, but also to the adequacy of the defendant's showing on the issue raised.' Commonwealth v. Stewart, supra at 257-258.' Commonwealth v. Smith, 459 Mass. 538, 556-557 (2011). There was no abuse of discretion in the judge's decision to deny the defendant's motion without a hearing.
Order denying motion for new trial affirmed.
By the Court (Cypher, Brown & Hanlon, JJ.),