Opinion
14-P-104
05-27-2015
COMMONWEALTH v. JOEL ROJAS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant raises various issues on appeal from an order of the District Court denying his motion for a new trial that sought to withdraw his guilty plea on four counts of possession of drugs with intent to distribute. For the reasons that follow, we affirm.
1. Waiver. As a threshold matter, we observe that the defendant's claims of ineffective assistance of counsel are barred by his "admi[ssion] in open court that he is in fact guilty of the offense[s] with which he is charged" because "a guilty plea, intelligently and voluntarily made, bars the later assertion of constitutional challenges to the pretrial proceedings." Commonwealth v. Berrios, 447 Mass. 701, 715 (2006) (citation omitted). We nonetheless discuss his various claims for the purpose of illustrating that they are without merit even had they not been waived.
2. Ineffective assistance of counsel. The defendant asserts that his former counsel was constitutionally ineffective because he failed to (i) file a motion pursuant to Commonwealth v. Amral, 407 Mass. 511 (1990); (ii) file an amended Franks motion; (iii) file a motion for disclosure of the names of confidential informants; (iv) request the procedures of the Holyoke police department concerning use of confidential informants and surveillance; and (v) file a motion to suppress certain statements made by the defendant. However, the defendant has failed to establish that any of those actions would have resulted in benefit to the defense. To the extent the defendant's arguments rest on the premise that the affidavit of Officer Duke submitted in support of the application for a search warrant was unreliable because a Superior Court judge did not credit the testimony of a different officer in an unrelated case, they are unpersuasive.
Under Commonwealth v. Amral, supra at 522, a judge should hold an in camera hearing "where the defendant by affidavit asserts facts which cast a reasonable doubt on the veracity of representations made by the affiant concerning a confidential informant."
Under Franks v. Delaware, 438 U.S. 154, 155-156 (1978), a judge should hold a hearing to ascertain whether a search warrant issued upon false representations "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit."
The defendant has furnished no cause to conclude, or even to suspect, that Officer Duke himself misrepresented or misstated any of the factual assertions contained in the affidavit. For substantially the reasons explained in the Commonwealth's brief at pages twenty-three to twenty-five, the confidential informants satisfied both prongs of the Aguilar-Spinelli test, and in any event the information they provided was corroborated by the three controlled buys conducted at the defendant's apartment. The motion judge was not required to credit the defendant's assertions (which contradicted his admissions at the plea hearing) that he made no sales of drugs from his apartment, or the descriptions by the defendant's counsel of unsubstantiated rumors, based on hearsay, that Holyoke officers regularly fabricated information attributed to confidential informants.
As the motion judge observed, the affidavits are not unreliable simply because Officer Duke did not personally observe the confidential informant go to the defendant's apartment. See Commonwealth v. Warren, 418 Mass. 86, 90 (1994).
Because the defendant has not established that either a Franks motion or an Amral motion would have succeeded, counsel was not ineffective for his failure to file such motions.
We further note that, though the defendant claims ineffective assistance by reason of his counsel's failure to file an amended Franks motion, the record reveals that counsel did file such a motion. The defendant appears to have entered his guilty plea before the motion was acted upon.
The defendant has likewise demonstrated no basis on which he could successfully have requested the names of the confidential informants. As the Commonwealth observes, the defendant was not charged with any of the controlled sales made to the informants. See Commonwealth v. Brzezinski, 405 Mass. 401, 408 (1989); Commonwealth v. Figueroa, 74 Mass. App. Ct. 784, 790 (2009).
The defendant's suggestion that counsel was ineffective for failure to seek suppression of the statements he made to police following his arrest is likewise without merit. The motion judge was entitled not to credit the defendant's uncorroborated affidavit that his Miranda waiver and statements were coerced. In any event, any potential prejudice flowing from his admission that the drugs found in his apartment were his (an admission that merely confirmed the obvious, in the circumstances) pales in comparison with the potential exculpatory value of his assertion that he possessed them for personal use and his denial that he was selling drugs.
3. Voluntariness. As the Commonwealth observes, the grounds upon which the defendant argues on appeal that his plea was not entered knowingly and voluntarily were not presented in his motion for a new trial. The arguments accordingly are waived. In any event, as noted earlier (and as further elaborated in the Commonwealth's brief at pages thirty-nine to forty-three) the defendant's submissions fail to establish any relevant connection between Officer Barkyoumb and the search warrant in his case.
Order denying motion for new trial affirmed.
By the Court (Cypher, Kafker & Green, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: May 27, 2015.