Opinion
13-P-892
01-07-2015
COMMONWEALTH v. TERRANCE MOON.
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
The defendant, Terrance Moon, pleaded guilty in 1985 to two charges arising from his armed attack on two men in Cambridge in 1984. He appeals from the denial of his motion for postjudgment relief, which he filed in 2013, more than twenty-seven years after pleading guilty. We affirm.
Background. On the morning of August 20, 1984, the defendant, armed with a sawed-off shotgun, assaulted two men and robbed one of them of some money, resulting in charges of armed robbery and assault by means of a dangerous weapon.
Because of the significant passage of time in this case, the record before us is devoid of factual material supporting the charges against the defendant and of a transcript of the defendant's plea colloquy with the judge. The facts in this decision are drawn primarily from the briefs of the parties.
On March 1, 1985, the defendant filed a motion to suppress identification. Although hearing dates were scheduled, the motion was never heard as the defendant ultimately pleaded guilty on June 13, 1985. He apparently received a favorable sentence.
Waiting decades, in a motion filed January 8, 2013, the defendant sought to have his convictions vacated. The motion was denied without a hearing in April of 2013, and the defendant appeals.
Denial of evidentiary hearing. A judge "may grant a new trial at any time if it appears that justice may not have been done." Commonwealth v. Murray, 461 Mass. 10, 19 (2011), quoting from Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The judge has the discretion to decide whether to grant an evidentiary hearing. Commonwealth v. Shuman, 445 Mass. 268, 278 (2005). Within this context, "the judge must decide whether a substantial issue necessitating a hearing has been raised. In doing so, the judge looks not only to the seriousness of the claim presented, but also at the adequacy of the defendant's factual showing." Ibid., quoting from Commonwealth v. Trung Chi Truong, 34 Mass. App. Ct. 668, 674 (1993). "A defendant bears the burden of proof on a motion for a new trial, and a judge is entitled to discredit affidavits he or she does not find credible." Commonwealth v. Marinho, 464 Mass. 115, 123 (2013) (citations omitted).
Here, the defendant has failed to demonstrate an abuse of discretion. While the defendant supplied an affidavit, the motion judge was entitled to discredit it. See ibid. Significantly, the defendant failed to explain why he was raising his claims after a delay of more than twenty-seven years. If a reason existed for the extraordinary delay, he could have placed that information before the motion judge. With nothing more than bare assertions after an unexplained, lengthy delay, the motion judge could reasonably exercise her discretion in finding that there was no "substantial issue necessitating a hearing." Commonwealth v. Shuman, supra.
Ineffective assistance of counsel. The defendant argues that he was deprived of effective assistance of counsel when his plea attorney did not litigate the motion to suppress and allegedly did not inform the defendant that pleading guilty would extinguish his constitutional right to confront witnesses.
When reviewing a claim of ineffective assistance of counsel, a court will examine whether counsel demonstrated "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. Valentin, 470 Mass. 186, 189 (2014), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If so, the court then asks whether such incompetence "has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Valentin, supra at 189-190, quoting from Commonwealth v. Saferian, supra. Essentially, a defendant must show resulting prejudice and that "better work might have accomplished something material." Commonwealth v. Valentin, supra at 198 (citation omitted).
Here, because of the significant passage of time and lack of a complete record, there are no grounds for concluding that plea counsel provided ineffective assistance in not arguing the motion to suppress. The matter was continued several times, and a hearing never was held. The defendant has not articulated specific facts that demonstrate that plea counsel displayed "serious incompetency, inefficiency, or inattention" in not arguing the motion, id. at 189 (citation omitted), and has also failed to show that he likely would have prevailed on the motion had it been argued. The defendant therefore has failed to show that counsel was ineffective. See id. at 198.
The defendant's argument that plea counsel was ineffective in failing to advise the defendant that he was surrendering his right to confront adverse witnesses also fails, for similar reasons. The defendant's own delay contributed to the absence of transcripts of his colloquy with the plea judge in 1985. Without additional record materials to examine the context of the defendant's plea, the motion judge was within her discretion not to credit the defendant's assertions. See Commonwealth v. Marinho, 464 Mass. at 123.
For these reasons and substantially those in the brief of the Commonwealth, we affirm.
Order denying motion to vacate convictions and for a new trial affirmed.
By the Court (Kantrowitz, Green & Meade, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 7, 2015.