Opinion
No. 10–P–1320.
2012-07-19
COMMONWEALTH v. Amy SMIGIELSKI.
By the Court (TRAINOR, SMITH & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Amy Smigielski, appeals from her conviction of unlawful possession of a firearm in a motor vehicle in violation of G.L.c. 269, § 10( a ), and unlawful possession of ammunition without a firearm identification (FID) card in violation of G.L.c. 269, § 10( h ), as well as the denial of her subsequent motion for new trial. She claims, among other things, that her counsel was ineffective because he recommended that she reject a plea offer that would have resulted in probation, rather than a mandatory term of eighteen months' incarceration. She further argues that she was deprived of a viable defense at trial. We reverse.
Trial. The defendant and the codefendant, Randy Ray Smith, traveled to Massachusetts from Texas by car on January 3, 2009, arriving on January 5, 2009. According to Smigielski, she owned a “LadySmith & Wesson” and ammunition which were in the trunk of the Ford Mustang. The travelers arrived in Massachusetts on January 5, 2009, and went to a bar in Chicopee on the evening of January 6, 2009. At approximately 2:00 A.M. on January 7, after a dispute about who would drive, Smith removed the gun from the trunk, threatened the defendant, and asserted his intention to drive the car. He then smashed the car into a telephone pole. Later, the car was rammed by a black sport utility vehicle, and Smith drew the gun and fired shots into the air. The Springfield police had been informed of a car accident, and then were alerted to “shots fired.” The resulting investigation led to the discovery of the handgun under the passenger seat, the ammunition and the holster on the back seat, and the subsequent arrest of the defendant and Smith. At the bench trial, defense counsel moved for required findings of not guilty, both at the close of the Commonwealth's case and at the close of the defendant's case. He argued that District of Columbia v. Heller, 554 U.S. 570 (2008), recognized a right to bear arms under the Second Amendment to the United States Constitution, and that the Commonwealth's firearms registration statute was therefore unconstitutional because it placed the burden of proving registration on the defendant. See G.L.c. 278, § 7; Commonwealth v. Powell, 459 Mass. 572, 583 (2011). He argued that both the Second Amendment and the commerce clause of the United States Constitution required that the defendant be afforded a reasonable time period in which to register the gun. Defense counsel further argued that the defendant was unaware the gun was in the car (claiming Smith had packed it without her knowledge). As a result, counsel claimed that the defendant lacked the necessary intent to possess the gun, and in any event, compliance with G.L.c. 140, § 129B, was an impossibility. The judge rejected the Heller argument, noting that Heller applied only to the right to bear arms in a residence in the District of Columbia, and denied the motions. He further ruled that the statute imposed a requirement that a firearm be registered before entering the State, and that there was no right to a grace period for a person traveling from out of State under the only provisions of the statute cited to him by analogy, G.L.c. 140, § 129B(11). He then found the defendant guilty on both counts.
After conviction, defense counsel moved for a stay of execution of sentence, agreeing that under current law the judge's ruling was correct, but arguing that a stay should be granted because the United States Supreme Court would apply the Second Amendment to the States in the then undecided case of McDonald v. Chicago, 130 S.Ct. 3020 (2010). Once that decision was released, he submitted, his arguments would have greater force. Noting that defense counsel's arguments would have to be resolved in the United States Supreme Court after a substantial period of litigation, the judge declined to stay the execution of sentence while “these yeasty debates [are] held on the scope and meaning of Heller.” The defendant was taken into custody and remanded for the mandatory term.
Plea negotiations.
Before the defendant's trial, codefendant Smith had agreed to plead guilty and to serve the mandatory term for firearms violations, provided that the Commonwealth gave favorable consideration to the defendant in the form of disposition by probation, not incarceration. Smith's counsel reported to defense counsel on his (Smith's counsel's) efforts to broker a global resolution of the charges through the plea negotiations. Throughout this time, the defendant told defense counsel that she was terrified of going to jail and wanted to take a plea that did not involve incarceration. When the prosecutor offered the defendant the opportunity to plead to a reduced charge that would permit a sentence of probation, rather than a mandatory term of eighteen months' incarceration, defense counsel countered by requesting an Alford plea. See North Carolina v. Alford, 400 U.S. 25 (1970). The prosecutor rejected this counteroffer and withdrew her offer, stating, “Then let's go to trial.”
We summarize the findings and rulings of the motion judge, who was also the trial judge, supplemented as necessary by the record of the hearing on the motion for new trial.
Although the plea was rejected (and the judge found the defendant, contrary to her representations, to be fully aware of the plea offer and the counteroffer rejection), the prosecutor was amenable to further discussion, and the matter still could have been resolved by way of the plea offer made by the prosecutor. The case was set for bench trial approximately two weeks hence, during which time defense counsel “convinced” the defendant to go to trial on the basis that Heller established a constitutional right to bear arms. He assured her that she had a high probability of acquittal based on the constitutional defense.
He did not, however, file a motion to dismiss or note this defense in the pretrial statement.
New trial motion. The defendant moved for a new trial arguing that trial counsel was ineffective for failing to communicate the plea offer. The judge made the factual findings noted, supra, that precluded this claim, but considered whether counsel's advice to proceed to trial was ineffective. The judge concluded that the defendant made a strategic decision, based on advice of counsel, to go to trial, and denied the motion.
Discussion. The plea. We review the claim of ineffective assistance under the familiar standard; that is, whether there has been serious incompetency of counsel falling measurably below that which might be expected from an ordinarily fallible lawyer, and if so, whether it has likely deprived the defendant of an otherwise available, substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Here, counsel's tactical advice to his client, upon which the judge found she relied, was manifestly unreasonable. See Commonwealth v. Martin, 427 Mass. 816, 822 (1998); Commonwealth v. Hill, 432 Mass. 704, 718 (2000). The defendant had clearly told counsel that she did not wish to go to jail, and that she was amenable to the plea. Defense counsel, who had stated to the judge that he did not expect a ruling in his client's favor on the key legal defenses,
nonetheless continued to press the defendant to trial based on a theory which, if her lack of knowledge of the gun claim was rejected (and it was), was admittedly unsupported by any existing law in the Commonwealth or under the United States Constitution at the time of trial. Heller held only that there was a right to bear arms in the home in the District of Columbia. McDonald ultimately did apply the Second Amendment to the States, but there was no controlling United States Supreme Court or Supreme Judicial Court case that, at the time of the plea offer, would have granted a right to carry arms in a car traveling from State to State without complying with the applicable firearm registration laws of the destination State.
“I don't know that I would have expected you today to rule in my favor on those things.”
The judge was obligated to apply the law as it existed at the time of trial. See Commonwealth v. Vasquez, 456 Mass. 350, 356–358 (2010). Vindication of defense counsel's constitutional theory would require years of appellate litigation, as the judge so aptly noted. Thus, defense counsel's theory placed the defendant in the crosshairs of a mandatory sentence which would have been (and was) served in full before the constitutional claim could be heard. The defendant did make a tactical decision, but that decision was made based on advice so flawed as to be constitutionally deficient. As a result, she “lost out on an opportunity to plead guilty and receive the lower sentence that was offered.” Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012).
The defense. The error was compounded at trial, when counsel failed to argue a statutory defense that may have provided a complete defense to the charges. General Laws c. 140, § 129C( j ), provides a sixty-day grace period in which new or returning residents may register certain firearms. The defendant testified at trial that she left her husband in Texas, packed her belongings in the car, and intended to move to Massachusetts, where her sister resides, to live in Easthampton and find employment. This evidence, if believed, was sufficient to raise the defense. However, both parties and the judge were of the impression that there was no statutory grace period for an individual driving into the State, either with or without an intent to reside.
In Commonwealth v. Cornelius, 78 Mass.App.Ct. 413, 419–420 (2010), we held that § 129C( j ) provides such a grace period to new residents who drive into the State with certain firearms in an automobile. Cornelius relied on a similar holding in Commonwealth v. Wood, 398 Mass. 135 (1986), and statutory amendments subsequent to Wood.
See G.L.c. 269, § 10( a )(4). As in Commonwealth v. Swan, 38 Mass.App.Ct. 539 (1995), where counsel failed to raise a regulation in defense to prosecution, the failure “deprived the defendant of an otherwise available, substantial ground of defence,” which likely influenced the judge's determination of guilt. Id. at 541, quoting from Commonwealth v. Saferian, 366 Mass. at 96. Whether viewed as unpreserved error that created a substantial risk of miscarriage of justice, see Commonwealth v. Eberle, 81 Mass.App.Ct. 235, 238–239 (2012), or ineffective assistance appearing indisputably on the record, see Commonwealth v. Zinser, 446 Mass. 807, 811 (2006); Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 344 (1994), the failure in this case to apprise the trier of fact of the statutory defense was error. See Commonwealth v. Livington, 70 Mass.App.Ct. 745, 750 (2007) (on direct appeal, counsel's failure to request instruction on necessity, or judge's failure sua sponte to so instruct, may be treated as either ineffective assistance or substantial risk of miscarriage of justice; standards are the same). See also Commonwealth v. McCrae, 54 Mass.App.Ct. 27, 29–30 & n. 2 (2002) (counsel ineffective where she pursued legally nonviable defense and failed to pursue viable one); Commonwealth v. Galvin, 56 Mass.App.Ct. 698, 701 (2002) (judge's failure sua sponte to instruct on self-defense was error that created substantial risk of miscarriage of justice).
Wood had answered this question in the affirmative in 1986, but pointed out that statutory language regarding “carrying” arguably nullified the exemption in some circumstances. 398 Mass. at 137. In 1990, the General Court amended the statute by deleting the references to “carrying.” Cornelius, supra at 415–416 & n .3. The Commonwealth argues that the holding in Cornelius could not have been anticipated. Wood, and the subsequent amendment, were clear.
We have examined the defendant's challenge to the sufficiency of the evidence and find it to be without merit. The gun was in the car; the only issue was her knowledge of that fact. Moreover, in the judge's decision on the motion for new trial, he stated he did not find credible her claim of lack of knowledge of the presence of the gun in the car. Compare Commonwealth v. Daley, 423 Mass. 747, 752 (1996). We do not address the defendant's other contentions which are unlikely to arise, if at all, in the same context, given our decision here.
The judgments are reversed and the findings are set aside.
So ordered.