Opinion
18-P-916
10-07-2019
COMMONWEALTH v. Conrad MURPHY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, acting pro se, appeals from the denial of his second motion for postconviction relief filed approximately twenty-nine years after he pleaded guilty to mayhem, assault with intent to murder, assault with intent to rape, assault and battery by means of a dangerous weapon, and indecent assault and battery. The convictions were based on evidence that the defendant brutally attacked a sixteen year old girl with a claw hammer, causing her serious head and facial injuries. The defendant's first motion to withdraw his guilty pleas claimed that the convictions for mayhem and assault and battery by means of a dangerous weapon were duplicative. The denial of that motion was affirmed in an unpublished decision of this court, which the Supreme Judicial Court declined to review further. See Commonwealth v. Murphy, 86 Mass. App. Ct. 1125 (2014), rev. denied, 470 Mass. 1107 (2015). In the defendant's second motion to withdraw his guilty pleas, his principal claims were that trial counsel rendered ineffective assistance by failing to investigate a theory of self-defense and by failing to advise the defendant of his appellate rights. In his affidavit submitted in support of the motion, the defendant averred that postconviction counsel was also ineffective for failing to raise trial counsel's ineffectiveness. We affirm.
We decline the defendant's invitation, in his brief in the current appeal, to reconsider that decision.
We review a judge's decision to deny a motion for a new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "Where a motion for a new trial is based on ineffective assistance of counsel, the defendant bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). The defendant has failed to meet that burden here.
But for the defendant's self-serving affidavit, which the motion judge was free to reject, see Commonwealth v. Colon, 439 Mass. 519, 530 (2003), there is nothing in the record that supports an inference that the victim acted as the aggressor. Rather, as the Commonwealth points out, "the account establishing the factual basis for the guilty pleas evidenced a brutal, one-sided attack by the defendant on the much smaller, minor female victim." The victim suffered extensive crush injuries to her face and head, including multiple fractures. By contrast, there were no visible injuries on the defendant when he was arrested in New York City shortly after the attack.
"While counsel certainly has ‘a duty to make reasonable investigations,’ counsel is also afforded the opportunity to ‘make a reasonable decision that makes particular investigations unnecessary.’ " Commonwealth v. Denis, 442 Mass. 617, 629 (2004), quoting Strickland v. Washington, 466 U.S. 668, 691 (1984). Based on the record before us, we cannot reasonably say that a decision by trial counsel not to pursue an investigation of self-defense, or a decision by postconviction counsel not to claim ineffective assistance of trial counsel on that basis, were decisions that "fell below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Comita, 441 Mass. at 90, quoting Saferian, 366 Mass. at 96-97. ,
Due to the passage of time, no transcript exists from the 1989 plea hearing. The reconstructed facts, which the motion judge accepted, are from the victim's grand jury testimony and a sentencing memorandum.
For essentially the same reasons, there is no merit to the defendant's claim that counsel was ineffective for failing to make an effort to preserve physical evidence for future deoxyribonucleic acid (DNA) testing. Given the nature of the attack, the presence or absence of the defendant's or the victim's DNA on objects at the scene of the attack would not have been probative on the issue of self-defense.
The defendant's claim that trial counsel was ineffective for failing to advise him "that he had a right to direct appeal even though he pleaded guilty" is also unavailing. In fact, had such advice been given to the defendant, it would have been inaccurate. As a matter of law, by pleading guilty, the defendant waived all nonjurisdictional defects, see Commonwealth v. Sylvia, 89 Mass. App. Ct. 279, 287 (2016), and the defendant's claims are not jurisdictional.
The docket reflects that at the time of his guilty pleas, the defendant was advised in open court of his entirely separate right to appeal his sentences to the Appellate Division of the Superior Court pursuant to G. L. c. 278, §§ 28A -28C. Although the defendant mentioned this right in the motion, the denial of which is currently before us, he does not appear to claim, and certainly has not established, any ineffective assistance of counsel in connection with any such sentence appeal.
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The defendant's remaining claims that his convictions were duplicative and that the Saferian standard is unconstitutional, were not raised in his second motion for postconviction relief and are, therefore, waived. See Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501 (2001); Commonwealth v. Deeran, 397 Mass. 136, 138-139 (1986). We review waived claims only for a substantial risk of a miscarriage of justice, see Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002), and we see none here.
Order denying motion for new trial affirmed.