Opinion
21-P-26
01-11-2022
COMMONWEALTH v. Jeremiah F. WOODEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2017, a jury convicted the defendant of two counts of assault by means of a dangerous weapon, resisting arrest, assault and battery on a police officer, and carrying a firearm without a license. The defendant also pleaded guilty to being an armed career criminal in violation of G. L. c. 269, § 10G (a ), predicated on two serious drug offenses as defined in G. L. c. 269, § 10G (e ), to which the defendant had pleaded guilty in 2014. He now appeals from the order denying his motion to vacate convictions and withdraw his 2014 guilty pleas.
The defendant contends that his 2014 plea counsel was ineffective for failing to inform him that, if he later committed an offense under G. L. c. 269, §§ 10 (a ), (c ), or (h ), his guilty pleas could subject him to prosecution as an armed career criminal under G. L. c. 269, § 10G (a). Plea counsel's ineffective assistance, the defendant argues, rendered his 2014 pleas involuntary. We affirm.
Discussion. "A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b). We review the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion" (quotations and citations omitted). Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016). "[W]hen evaluating the defendant's request to withdraw a guilty plea on the basis of ineffective assistance of counsel," Commonwealth v. Wentworth, 482 Mass. 664, 677 (2019), we review to determine whether the defendant has "show[n] that his attorney's performance fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that he suffered prejudice because of his attorney's unprofessional errors." Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). "[A] plea is valid only when the defendant offers it voluntarily, with sufficient awareness of the relevant circumstances ... and with the advice of competent counsel" (quotation and citation omitted). Commonwealth v. Roberts, 472 Mass. 355, 362 (2015).
The motion judge did not err in denying the defendant's motion. "Generally, in Massachusetts, a failure to inform a defendant of the collateral or contingent consequences of a plea does not render the plea involuntary." Commonwealth v. Henry, 488 Mass. 484, 497 (2021). The possibility that future criminal conduct might invite prosecution of the defendant as an armed career criminal is a collateral consequence of the defendant's guilty pleas. See id. Put differently, the predicate offense required under G. L. c. 269, § 10G (a ), was satisfied upon the defendant's tender of plea, but a conviction was still contingent upon a separate and later criminal offense -- the defendant's unlawful possession of a firearm -- and a successful prosecution of that offense. See Commonwealth v. Ronald R., 450 Mass. 262, 266 (2007) ("A collateral proceeding is ‘separate from but not entirely divorced from the underlying judgment.’ Therefore, a proceeding may be collateral even though it involves the same participants before the same judge" [citation omitted]). See also Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 578-579 (2001) (defining collateral consequence as "something that flows or may flow secondarily from conviction or incarceration").
The defendant argues that "an ordinary fallible defense attorney" would have known that the defendant's guilty pleas could serve as predicate offenses under G. L. c. 269, § 10G (a ). He urges us to carve out an exception to established law and hold that a defense attorney has a professional duty to advise a defendant, prior to the tender of a plea, that the defendant may be subject to a possible sentencing enhancement in the event of a future conviction under G. L. c. 269, §§ 10 (a ), (c ), or (h ). The defendant cites to no case where such a duty has been recognized. Indeed, and contrary to his claim, the Supreme Judicial Court's recent decision in Henry, 488 Mass. at 497-498, reaffirmed the principle "that defense counsel is not constitutionally required to warn of [collateral] consequences [of a guilty plea]." Commonwealth v. Sylvester, 476 Mass. 1, 6 (2016), citing Commonwealth v. Shindell, 63 Mass. App. Ct. 503, 508 (2005).
Plea counsel stated in his affidavit accompanying the defendant's motion to vacate convictions that he does not remember whether the defendant was informed that his guilty pleas could be "used as a predicate offense for an Armed Career Criminal indictment" under G. L. c. 269, § 10G. The defendant avers that plea counsel did not so advise him.
Because we conclude that plea counsel's failure to advise the defendant of possible adverse collateral consequences does not render his guilty pleas involuntary, his claim of prejudice necessarily fails. Contrast Commonwealth v. Najjar, 96 Mass. App. Ct. 569, 576 (2019) ("where a defendant lacks actual knowledge of what the plea connotes or of the direct consequences of the plea, it is unknowing in a constitutional sense, and must be vacated").
Order denying motion to vacate convictions affirmed.