Opinion
10-P-1539
12-16-2011
COMMONWEALTH v. JOEL VASQUEZ.
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
On December 16, 2005, the defendant, Joel Vasquez, was indicted by a Hamden County grand jury for murder in the first degree, in violation of G. L. c. 265, § 1. On December 4, 2006, the defendant pleaded guilty to the lesser included offense of murder in the second degree. At the same time, having waived an indictment, the defendant pleaded guilty to an additional charge of possession of a firearm during the commission of a felony, in violation of G. L. c. 265, § 18B. The defendant in his plea colloquy admitted to shooting Jonathan Melendez, resulting in his death on October 1, 2005. The judge sentenced the defendant to a term of life in prison on the murder charge, to be served on and after a five year sentence on the firearm charge.
On July 19, 2010, the defendant filed a motion to withdraw his guilty plea and for a new trial. The motion judge denied the motion the following day. On August 9, 2010, the defendant filed a motion for reconsideration, which was denied by the motion judge on August 16, 2010.
The defendant filed a notice of appeal on August 24, 2010. He argues that his plea of December 4, 2006, was not knowing and voluntary, and further that his plea counsel was ineffective for (1) failing to investigate a lack of criminal responsibility defense, (2) failing to advise defendant of the elements of the jury selection process, (3) failing to advise defendant of the elements of the crimes charged, and (4) failing to inform the defendant of the consequences of his waiver to have the firearm charge indicted. The defendant argues that his motion to withdraw his guilty plea and for a new trial was improperly denied by the motion judge.
On September 29, 2011, the defendant filed a motion to expand the record on appeal, for consideration by this court. With his motion to expand the record, the defendant presents new evidence in support of his claims that his plea was not knowing and voluntary and that his counsel was ineffective in failing to pursue a lack of criminal responsibility defense. This new evidence consists of records and psychological evaluations from The Children's Village, a residential youth treatment center in Dobbs Ferry, New York, where the defendant resided between March 26, 2001, and June 10, 2005.
Though we grant the defendant's motion to expand the record on appeal, we affirm the denial of his motion to withdraw his guilty plea and for a new trial.
See Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 312 n.15 (2010) (granting motion to expand record on appeal where evidence was relevant to disposition of defendant's claims and where prosecution did not oppose the motion).
Discussion. To prevail on his claims of ineffective assistance of counsel, the defendant must show (1) that 'there has been serious incompetency, inefficiency, or inattention of counsel--behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,' and (2) that, as a result, the defendant was 'likely deprived . . . of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). 'Where a claim of ineffective assistance is directed to counsel's representation incident to a guilty plea, the second prong of the Saferian test requires a defendant to show 'that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Commonwealth v. Pike, 53 Mass. App. Ct. 757, 762 (2002), quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985).
'[F]ailure to pursue a groundless insanity defense is not ineffective assistance of counsel . . . and failure to pursue a marginal insanity defense before advising a guilty plea may not amount to ineffective assistance of counsel . . . especially where the defendant has sufficient reasons to plead guilty, such as the strength of the evidence against him, fear of [a harsh sentence], or a desire for a clear conscience.' Osborne v. Commonwealth, 378 Mass. 104, 110 (1979).
'In the context of a guilty plea, justice is not done when a defendant's plea of guilt is not intelligent and voluntary.' Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 637-638 (2007) (citations omitted). 'A defendant's plea is intelligent when made with understanding of the nature of the charges . . . and the consequences of his plea . . . it is voluntary when free from coercion, duress, or improper inducements.' Id. at 638, citing to Commonwealth v. Berrios, 447 Mass. 701, 708 (2006).
The motion judge was within his discretion to find that the defendant's plea was made knowingly and voluntarily. The judge found the defendant to be mentally competent despite his suicide attempt while at the Hampden County Correctional Center, and such a finding was not contrary to law. See Commonwealth v. Goodreau, 442 Mass. 341, 352 (2004). The medical records from the Hampden County Sheriff's Department following the suicide attempt indicate that the defendant was 'not paranoid, delusional, hallucinating, distractible, or responding to any internal stimuli.' They do not indicate any clear psychological disorder. Further, the motion judge was within his discretion to credit the defendant's repeated representations of his competence at the plea colloquy, and to disregard his subsequent claims of incompetence contained in his affidavit. See Commonwealth v. Grant, 426 Mass. 667, 673 (1998); Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997).
As we here grant the defendant's motion to expand the record on appeal, we also consider the new evidence he offers in support of his claims. The psychological evaluations from Children's Village include, inter alia, diagnoses of disruptive behavior disorder, ADHD, and oppositional defiant disorder, as well as a recommendation of treatment for abuse of marijuana. The defendant argues that the evaluations were known or accessible to his plea counsel, and that they raise a criminal responsibility defense.
The new evidence from Children's Village fails to support the defendant's claims that he suffered from a mental disability which (1) raised a defense of lack of criminal responsibility or (2) might have interfered with his competence to plead guilty. The disorders recorded at Children's Village fall well short of the kind that would suggest that at the time of the shooting, the defendant lacked 'substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.' Commonwealth v. Candelario, 446 Mass. 847, 854 (2006) (quotations omitted). See also Commonwealth v. Zagrodny, 443 Mass. 93, 108 (2004) ('[N]ot every defendant suffering from [a] mental illness lacks criminal responsibility for his acts'). Nor do the Children's Village records in any way indicate that the defendant at the time of the plea colloquy misunderstood either 'the nature of the charges' or 'the consequences of his plea.' Hiskin, supra at 638.
We note that absent from the record is any affidavit from plea counsel describing his efforts, or lack thereof, to obtain the records from Children's Village. An ineffective assistance of counsel claim 'bereft of any explanation by trial counsel for his actions' is the 'weakest form of such a challenge.' Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). In any event, even had the records from Children's Village been known or accessible to trial counsel, they do not raise a defense of lack of criminal responsibility, and therefore the conduct of defense counsel could not have 'deprived the defendant of an otherwise available, substantial ground of defence.' Saferian, supra at 96.
The defendant also states in his motion to expand the record that the files had 'finally arrived,' suggesting that the records may not have been readily accessible at the time of the plea colloquy.
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For the reasons set forth in the Commonwealth's brief at pages 12-19, we further hold that defendant's claims of ineffective assistance of counsel for failure to advise defendant of the elements of the jury selection process, failure to advise defendant of the elements of the crimes charged, and failure to address the waiver of rights form, are without merit.
Order denying motion to withdraw guilty plea and for a new trial affirmed.
By the Court (Kafker, Trainor & Meade, JJ.),