Opinion
16-P-973
04-25-2017
COMMONWEALTH v. Rodney V. COLEMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion to withdraw his guilty plea on one charge of witness intimidation. He argues that he made a substantial showing that his plea counsel was ineffective and that the judge therefore erred by not holding an evidentiary hearing on the motion. We affirm.
Background. We summarize the facts found by the judge, supplemented with uncontested facts from the record. On April 18, 2010, the defendant and the victim were involved in an altercation at Sullivan Square Station, attracting the attention of nearby transit police officers. The victim told the officers that he and his girlfriend were waiting for a bus when the defendant approached him in a menacing manner and stated, "I was there that night at Harvard; I know what you did, you're a snitch, they're plotting on you, you snitch." The victim understood this statement to be referring to an earlier incident during which the defendant participated in a "knife threat" against the victim, resulting in charges being filed in Cambridge District Court. According to the victim, after making this statement, the defendant grabbed him with both hands, pushed him, and struck him with his fists, causing a minor but noticeable laceration under the victim's right eye. The victim's girlfriend confirmed to the officers that the defendant approached the victim and called him a "snitch."
The officers contacted the Cambridge police department, which confirmed that the victim was a named victim in an open case in Cambridge District Court. Upon receipt of that information, the officers arrested the defendant. The defendant was subsequently arraigned on charges of witness intimidation and assault and battery.
After conducting a pretrial investigation into the victim's criminal record, plea counsel discovered that he had open cases that could be used as possible "first aggressor" evidence under Commonwealth v. Adjutant, 443 Mass. 649 (2005). Plea counsel further discovered that the victim's girlfriend had once sought a restraining order against him. Shortly before the scheduled trial date, plea counsel's investigator interviewed the girlfriend, who stated that she was no longer dating the victim and that, while she could not remember who started the fight, she did remember the defendant calling the victim a "snitch." The girlfriend confirmed these statements to plea counsel on the day of the scheduled trial.
"[W]here the identity of the first aggressor is in dispute and the victim has a history of violence, ... the trial judge has the discretion to admit evidence of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated, to support the defendant's claim of self-defense." Adjutant, 443 Mass. at 664.
Plea counsel relayed this information to the defendant and advised him that the girlfriend would be a credible witness if the case proceeded to trial. After receiving this advice, the defendant pleaded guilty to the charge of intimidation of a witness, in exchange for dismissal of the assault and battery charge. He was sentenced to eighteen months of probation.
Over three years later, the defendant moved to withdraw his plea, alleging that plea counsel was ineffective because she failed to thoroughly investigate the victim's criminal record and his history of violence against his girlfriend. In support of the motion, the defendant submitted his own affidavit and one from plea counsel. Plea counsel explained in her affidavit that she "obtained a copy of [the victim's] criminal history prior to the pretrial hearing" and discovered that "most of the cases had been dismissed without prejudice," but four were still open, including one out of Chelsea District Court. She then "retrieved the underlying police reports and dockets for [the victim's] open cases" and "discovered that [he] had been found incompetent to stand trial in prior cases." According to plea counsel, she advised the defendant that "[they] could possibly use [the victim's] Chelsea case to try to prove that he was the first aggressor in the altercation."
In his affidavit the defendant agreed that plea counsel had "told [him] that [they] might be able to use evidence from [the victim's] case out of Chelsea to prove that he attacked [the defendant] first." He claimed, however, that he "was unaware that [the victim] had numerous other cases involving violence" and that, had he "known that [the victim] had been accused of all this violent behavior," he "would not have pleaded guilty." The defendant further alleged that, had he been aware of "the full extent of [the victim's] ... abuse of [his girlfriend]," he would have chosen to go to trial because the evidence of the victim's "prior abuse of [his girlfriend] could [have been] used to impeach her testimony by showing that she was scared of him."
After a nonevidentiary hearing, the same judge who took the guilty plea denied the defendant's motion to withdraw it. The judge determined that plea counsel's investigation was adequate and that she discussed the results of her investigation with the defendant, giving him "more than sufficient" information "to make a rational decision to plead guilty." The judge also found that the defendant failed to prove that he was prejudiced by plea counsel's performance. As the judge concluded, "in light of the facts and circumstances confronting the [d]efendant," including the strength of the evidence against him, "he wisely chose to enter a guilty plea and seek a term of probation."
Discussion. A motion to withdraw a guilty plea is treated as a motion for a new trial and may be allowed if "it appears that justice may not have been done." Commonwealth v. Scott, 467 Mass. 336, 344 (2014). The motion is "committed to the sound discretion of the judge," who "may make the ruling based solely on the affidavits." Ibid. An evidentiary hearing is required "only if the affidavits or the motion itself raises a ‘substantial issue’ that is supported by a ‘substantial evidentiary showing’ " Ibid., quoting from Commonwealth v. Stewart, 383 Mass. 253, 260 (1981). We review a denial of such a motion only to determine whether there has been "a significant error of law or other abuse of discretion." Ibid., quoting from Commonwealth v. Sherman, 451 Mass. 332, 334 (2008). Moreover, where, as in this case, the judge passing on the motion was also the judge who took the plea, "particular deference" must be afforded his rulings. Ibid.
The judge here acted within his discretion in concluding that the defendant did not raise a substantial claim of ineffective assistance of counsel. To succeed on his claim, the defendant had to prove that there was "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). The judge could permissibly find, based on the affidavits submitted, that the defendant did not meet this burden.
First, the affidavits support the judge's conclusion that plea counsel's investigation of the victim's criminal history was reasonable and did not fall below the standard of an ordinary fallible lawyer. As plea counsel explained in her affidavit, she searched for possible Adjutant evidence by obtaining a copy of the victim's criminal record and then retrieving police reports and dockets from his four open cases. She then advised the defendant that one of those cases could be used at trial to portray the victim as the first aggressor. Although the defendant contends that plea counsel should also have investigated the victim's closed cases, it is apparent that she made the deliberate choice not to do so because "most of [those] cases had been dismissed" and because "[the victim] had been found incompetent to stand trial in prior cases." The judge was within his rights to find that choice to be not "manifestly unreasonable." Commonwealth v. Martin, 427 Mass. 816, 822 (1998) ("An attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made"). Cf. Commonwealth v. Bois, 476 Mass. 15, 23 (2016) (where "counsel's investigation was sufficient to allow her to make the strategic decision not to present [evidence] to the jury," that "decision was not 'manifestly unreasonable"').
Second, the judge acted within his discretion in finding that plea counsel adequately investigated the victim's history of violence against his girlfriend and then made an informed decision about the girlfriend's credibility. Based on her investigation, plea counsel knew that the girlfriend had once sought a restraining order against the victim and was thus aware that the girlfriend may have feared him. Nonetheless, plea counsel determined that the girlfriend would still be a credible witness because she was no longer in a relationship with the victim by the trial date and because she had stated consistently on several occasions that the defendant called the victim a "snitch." Plea counsel's assessment of the girlfriend's credibility was an exercise of judgment, which, even assuming it was wrong, does not establish that she was constitutionally ineffective. See Commonwealth v. Mahar, 442 Mass. 11, 17 (2004), quoting from In re Alvernaz, 2 Cal. 4th 924, 937 (1992) ("[A] defense attorney's simple misjudgment as to the strength of the prosecution's case [or] the chances of acquittal ..., among other matters involving the exercise of counsel's judgment, will not, without more, give rise to a claim of ineffective assistance of counsel").
Resolving the appeal on this basis, we need not address whether the defendant was prejudiced by plea counsel's performance.
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Order denying motion to withdraw guilty plea affirmed.