Opinion
15-P-620
03-04-2016
COMMONWEALTH v. ARMANDO ALVES.
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
On appeal from the denial of his second motion for a new trial, the defendant claims (1) his plea was not knowing and voluntary, (2) the factual basis for the plea was inadequate, and (3) trial counsel was ineffective for failing to move to dismiss the complaint for lack of probable cause. We affirm.
In the District Court the defendant admitted to facts sufficient for a finding of guilty on charges of (1) possession of a burglarious instrument in violation of G. L. c. 266, § 49, and (2) attempt to commit the crime of breaking and entering in the nighttime to commit a felony in violation of G. L. c. 274, § 6. The judge continued the case without a finding of guilt for eighteen months. Six months later, the defendant, a citizen of Cape Verde, filed a motion for a new trial claiming trial counsel had not advised him of the immigration consequences of his plea. See Padilla v. Kentucky, 559 U.S. 356, 374 (2010). In the alternative, the defendant moved to revise and revoke his sentence pursuant to Mass.R.Crim.P. 29, 378 Mass. 899 (1979). The motions were denied by the plea judge.
Three years later the defendant filed a second motion for new trial claiming, for the first time, that his plea was unknowing and involuntary, that the factual basis for his plea was insufficient, and that trial counsel was ineffective for failing to file a motion to dismiss. After a hearing and review of the plea colloquy, a second judge "noted" the Commonwealth's argument that the claims in the second motion for new trial had been waived, but denied the motion on the merits stating, "I find that the plea was made intelligently, voluntarily, knowingly, freely with a full understanding of its consequences. I find that there was a factual basis for the complaints before the Court, and that by pleading guilty there was a voluntary waiver of his constitutional right to a trial by judge or jury." The judge also found that defense counsel was not ineffective for failing to file a motion to dismiss.
Discussion. The claims related to the plea colloquy are unpreserved assertions of error. We therefore review for a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294 (2002). We review the ineffective assistance claim to determine whether counsel's conduct fell measurably below that expected from an ordinary fallible lawyer and, if so, whether it deprived the defendant of a substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
For a plea to be intelligently made, the defendant must have knowledge of the elements of the charges against him. See Mass.R.Crim.P. 12(c)(5)(A), 378 Mass. 869 (1979); Commonwealth v. Correa, 43 Mass. App. Ct. 714, 717 (1997). "This requirement can be satisfied in one of several ways: (1) by the judge explaining to the defendant the elements of the crime; (2) by counsel's representation that she has explained to the defendant the elements he admits by his plea; or, (3) by the defendant's stated admission to facts recited during the colloquy which constitute the unexplained elements." Ibid. Here, although the judge did not articulate the elements and trial counsel did not represent that he had explained them, the defendant admitted to facts which constitute the elements of each offense.
To convict the defendant for possession of burglarious instruments the Commonwealth must prove that the defendant possessed a tool or implement adapted or designed for cutting through, forcing or breaking open a building in order to steal therefrom or commit any other crime with the intent to use the instrument for that purpose. Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 5-6 (2001). The elements of attempt are (1) specific intent, (2) an overt act, and (3) failure to achieve the substantive crime. Commonwealth v. Bell, 455 Mass. 408, 412 (2009). At the plea hearing, the prosecutor recited the following facts: (1) police officers responded to a reported burglary in progress at a neighbor's house at 5:00 A.M., (2) the defendant was apprehended at the scene moments later and the codefendant fled, (3) there were several ripped screens in the lower windows in the house near the area where the suspects were reported to have been seen, (4) the defendant had a screwdriver in his pocket, (5) when the codefendant was apprehended he had the keys to a silver car parked in the driveway of the house with the damaged screens, (6) a suspected stolen compact disc player was seized from the trunk of that vehicle. In addition, the prosecutor explained the Commonwealth's theory -- that the defendants intended to break into the house and were in the process of doing so when they were interrupted by the police. The defendant's admission to these facts and his execution of the waiver of rights form indicating that he was "aware of the nature and elements of the charge(s) to which I am entering my . . . admission," taken together, sufficiently established the elements of possession of a burglarious instrument and attempt to break into the home. We discern no abuse of discretion in the motion judge's conclusion that the factual basis for the plea was adequate and that the defendant's admission was knowing and intelligent.
The defendant's assertion that the plea was not voluntary is equally unavailing. Although it would have been a better practice for the plea judge to inquire specifically whether the plea was the product of threats, coercion, or improper inducements, "[n]o particular form of words need be used in the required inquiry of the defendant," and the issue need not be raised directly. Commonwealth v. Quinones, 414 Mass. 423, 434 (1993). The plea judge explained the defendant's right to a trial, his right against self-incrimination, his right to confront witnesses against him, and his right to present evidence in his own defense. The defendant acknowledged that he understood and voluntarily waived those rights. The judge also inquired about the defendant's age and education, whether he had consumed any drugs or alcohol in the preceding twenty-four hours, whether he suffered from any mental illness and whether he had discussed the plea with his lawyer. After hearing the prosecutor's recommendation, the judge informed the defendant of the terms and conditions of the continuation without a finding that he proposed. Finally, the defendant signed a waiver of rights form indicating that he "decided to plead guilty, or admit to sufficient facts freely, and voluntarily" and that his "admission [was] not the result of force or threats, promises or other assurances." Thus, the record reflects that the defendant had ample opportunity to inform the judge of any undue pressure or coercion, but did not. Taken as a whole, the record indicates that the defendant's plea was made voluntarily and with knowledge of its consequences.
Finally, we agree with the judge's conclusion that defense counsel was not constitutionally ineffective for failing to file a motion to dismiss for lack of probable cause. First, we view the evidence as sufficient to establish probable cause that the defendant committed the charged offenses. "It is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success." Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983). Therefore we cannot conclude that the defendant was deprived of a substantial ground of defense. Second, the decision not to file a motion to dismiss may well have been a tactical one when, on the day of the scheduled pretrial conference, defense counsel was able to negotiate a disposition avoiding incarceration and a finding of guilt. This disposition was particularly favorable in light of the fact that the defendant was already on probation for a similar offense. A tactical judgment to accept such a disposition rather than pursuing a motion with minimal chance of success was not manifestly unreasonable. See Commonwealth v. White, 409 Mass. 266, 273 (1991).
Order denying second motion for new trial affirmed.
By the Court (Cohen, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 4, 2016.