Opinion
17-P-508
03-12-2019
COMMONWEALTH v. KENNETH BARTLETT.
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
In 1992, the defendant pleaded guilty in Superior Court to two counts of murder in the second degree. Eighteen years later, in 2010, the defendant filed a motion for a new trial pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), seeking to withdraw his guilty pleas, arguing that he was misadvised in 1992 as to how his murder pleas would affect his then-pending sentencing in Federal court on a related crime. The defendant argues (1) that there was error in connection with the 1992 plea colloquy and hearing, so that his plea was not intelligently made, and (2) that trial counsel provided ineffective assistance, because he provided incorrect advice regarding the effect of the murder pleas on the defendant's Federal sentencing. A Superior Court judge held an evidentiary hearing in 2015, and denied the motion. We affirm.
1. Background. On December 11, 1990, the defendant was indicted in a Federal indictment along with forty-nine others for his role as an enforcer in an extensive drug distribution ring in Roxbury, headed by one Darryl Whiting. During discovery on the Federal indictment the defendant was advised that the Federal prosecutors intended to introduce evidence that he had committed two murders, approximately one month apart in 1988, in furtherance of the drug conspiracy.
The Federal charge was one count of conspiracy to possess cocaine with intent to distribute.
The Federal prosecutors also indicated that they were planning to provide the murder evidence to State prosecutors, for probable indictment.
The defendant's Federal drug conspiracy case went to trial in late 1991. On day six of trial -- December 2, 1991 -- the defendant pleaded guilty to the Federal charge. Under the Federal plea bargain the government agreed to recommend that the defendant be sentenced at the low end of the sentencing range that counsel had arrived at under the guidelines: 262 months (twenty-one years, eight months), to run concurrent with any State sentence. The sentencing hearing was scheduled several months out, in March, 1992. Once the Federal plea was accepted, the defendant's counsel arranged for State prosecutors to promptly indict the defendant on the murder charges, such that the defendant could plead guilty to those charges and be sentenced in State court prior to his Federal sentencing. The State court murder pleas were thus part of a strategy to minimize the defendant's cumulative time served; by pleading to the State charges before the Federal sentencing took place, the Federal sentence could be imposed concurrently with the State sentences.
The range that counsel had calculated was 262 to 327 months. See United States v. Whiting, 28 F. 3d 1296, 1310 (1st Cir. 1994).
On January 31, 1992, the defendant pleaded guilty in State court to two counts of murder in the second degree and two counts of unlawful possession of a firearm. He was immediately sentenced to concurrent life sentences, which were subject to the possibility of parole after fifteen years. Thereafter, on March 11, 1992, at the Federal sentencing hearing, defense counsel and the assistant United States attorney jointly advanced the agreed 262-month recommendation, with the Federal sentence to be imposed concurrently with the State sentence. This recommendation was based on counsels' mutual understanding of the Federal sentencing guidelines, and the manner in which the guidelines accounted for the State murder convictions. The Federal judge accepted the 262-month recommendation but rejected the recommendation of concurrency; rather, the judge imposed the 262-month sentence consecutively to the State sentence. Thereafter, the defendant appealed the Federal sentence. The United States Court of Appeals for the First Circuit held that the Federal District Court judge erred in construing the Federal guidelines, and that as a result of the State murder convictions the defendant's offense level under the guidelines was three points higher than the Federal District Court judge had calculated, so that the sentencing range under the guidelines was 360 months to life in prison. United States v. Whiting, 28 F.3d 1296, 1311 (1st Cir. 1994). On remand the same Federal judge imposed a new sentence of 384 months (thirty-two years), but this time the defendant's Federal sentence was imposed concurrently with the State sentence.
The defendant was sentenced to three to five years, served concurrently with the life sentences, on the gun possession charges.
The Federal judge explained that his decision to impose consecutive sentences was motivated by the facts of the State murder cases, which he believed could only be described as "first degree murders":
"Those are first degree murders as clearly as first degree murder can ever be defined. . . . [H]e seems in court a very pleasant and agreeable young man, but with a proclivity for shooting people which requires that he be kept out of circulation for as long as possible."
We note that this new sentence of 364 months actually resulted in a shorter total sentence for the defendant than the previous Federal sentence, because the new Federal sentence was imposed concurrently.
On March 12, 2010 -- eighteen years after pleading guilty in State court to murder in the second degree -- the defendant filed a motion to withdraw his State court guilty pleas. After postconviction discovery the matter was scheduled for hearing in March, 2015. Trial counsel for the defendant testified at the hearing, as did an investigator for the Suffolk County District Attorney's office.
The defendant's motion was denied on August 31, 2015. In his decision the Superior Court judge credited trial counsel's testimony that counsel had never promised the defendant any particular outcome for his Federal sentence, but rather that it was counsel's practice to give detailed explanations of the terms and conditions of any plea bargain, including the recommended sentence, and also to explain that joint recommendations in Federal court are always subject to the approval of the court and need not be accepted. The Superior Court judge further noted that during the Federal plea hearing on December 2, 1991, the Federal judge had explicitly informed the defendant that the judge was not bound by a joint recommendation in a plea agreement, and could deviate from it. The Superior Court judge also concluded that while defense counsel appeared to have misapprehended the impact of the murder convictions on the guideline calculation, that misapprehension had been shared by the prosecutor and the Federal judge, such that defense counsel's misapprehension, "at worst," should be characterized as "an inaccurate prediction." The Superior Court judge accordingly rejected the contention that defense counsel's advice fell measurably below what would be expected from an ordinary, fallible lawyer. The defendant appeals.
Discussion. The defendant's argument boils down to the assertion that he would not have pleaded guilty to the murders had he been properly advised as to how those pleas would impact his upcoming Federal sentencing. The defendant advances a variety of legal theories for why he accordingly should be allowed to withdraw his pleas. None of the defendant's arguments is persuasive.
The defendant also asserts prejudice from the misadvice, because he claims that if properly advised he would have gone to trial, and that the murder cases were defensible. He points out that the eyewitness evidence against him came from government informants who were subject to criminal charges at the time, and thus, he argues, not credible. Because we agree with the Superior Court judge that counsel's performance did not fall below the constitutional standard, we do not reach the prejudice prong.
First, the defendant argues that the State court plea hearing was constitutionally deficient, in that he was misled -- or not properly advised by the judge -- regarding the impact of the pleas on his Federal sentencing. The defendant focuses in particular on a statement made by his counsel during the sentencing portion of the hearing:
"Your honor, I concur that it is a joint recommendation. I think it is a fair recommendation. It is consistent with the defendant's record, which despite the nature of the offense is not terribly extensive, and it is consistent with what I understand will be imposed upon
him in the Federal [c]ourt, to which he has already pleaded guilty but has not yet been sentenced."
The defendant claims that this statement by his counsel amounted to an (incorrect) assurance "that by pleading guilty in this case he would be ensuring a favorable outcome in his [F]ederal criminal case." The defendant also attempts to fault the judge for not "correcting" counsel's statement. A valid guilty plea must be entered voluntarily and intelligently, with knowledge of the rights that the defendant is waiving and the direct consequences of his plea. Commonwealth v. Murphy, 73 Mass. App. Ct. 57, 61-65 (2008). However, with some exceptions (not applicable here), a failure to inform the defendant of the collateral consequences of his plea does not render the plea involuntary or unknowing. Id. at 64.
In this case the statement by defense counsel simply does not bear the weight the defendant attempts to place on it. To begin, counsel's statement was made during the sentencing phase of the plea hearing, after the defendant had already pleaded guilty, after the defendant's colloquy with the judge, and after the judge accepted the pleas. The defendant accordingly could not have relied upon counsel's statement in pleading guilty nor could he have been misled by the judge's alleged failure to correct it. And beyond that point, counsel's statement that the proposed State court sentence "is consistent with what I understand will be imposed upon him in [F]ederal court" is so ambiguous that it cannot reasonably be understood as a representation of any particular outcome in Federal court. The statement accordingly could not render the defendant's plea constitutionally defective.
While counsel has a role in the plea context to properly advise his client on a variety of subjects, counsel is not expected to accurately predict how the judge will ultimately sentence. See Commonwealth v. Stanton, 2 Mass. App. Ct. 614, 622 (1974) (predictions by counsel regarding sentencing outcomes "form no basis for attacking a plea" where defendant is aware judge is not bound by recommendations).
Next, the defendant asserts that his trial counsel rendered ineffective assistance because counsel misadvised him as to the impact of murder pleas under the Federal sentencing guidelines. To show ineffective assistance, the defendant must demonstrate that counsel's conduct fell measurably below that of the ordinary, fallible lawyer and that he was prejudiced by that error. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Here the defendant has failed to show that counsel's services fell measurably below those of the ordinary, fallible lawyer. To the contrary, the evidence shows that trial counsel performed competently. He engaged in two separate plea negotiations, simultaneously, with the appropriate goal of minimizing the defendant's jail time for three very serious crimes -- two murders and a Federal drug distribution conspiracy charge. As to the State murders, despite the gruesome nature of each murder, defense counsel secured the State prosecutor's agreement to charge only murder in the second degree, thereby avoiding the risk of the sentence for murder in the first degree -- mandatory life in prison without parole. Next, defense counsel obtained the Federal prosecutor's agreement to recommend that the Federal sentence run concurrently with the State sentences; if the Federal judge had agreed with that recommendation defense counsel would have accomplished an exceptional result for the defendant, whereby the defendant potentially could have been released from prison after only seventeen years.
The prosecutor provided details of the two murders during the plea hearing. Suffice it to say that those details indicated that the murders were dispassionate, and premeditated.
Finally, as the third leg of his strategy, defense counsel needed to convince the Federal judge to accept the joint recommendation. Admittedly he failed in this regard, but defense counsel cannot be faulted where the judge broke with his more common practice and chose to impose the sentences consecutively -- the judge's decision to render consecutive sentences was based upon the facts of the murders to which the defendant admitted. See Commonwealth v. Facella, 478 Mass. 393, 412 (2017) ("typically we do not characterize strategic decisions as ineffective assistance merely because they prove unsuccessful"). See also Commonwealth v. Sena, 441 Mass. 822, 825-826 (2004) (counsel's strategic decisions are not ineffective unless they are manifestly unreasonable).
We accordingly agree with the Superior Court judge that defense counsel's advice did not fall measurably below what could have been expected of the ordinary fallible lawyer. The strategy of pleading guilty in both courts was objectively reasonable given the evidence against the defendant, which included eyewitnesses to each of the murders. Moreover, defense counsel did what he could to determine whether the Federal judge would follow the joint recommendation, by raising the issue in open court, with the defendant present and before the defendant entered a plea in either court. The Federal judge refused to say whether he would follow the joint recommendation, leaving the defendant advised of that risk.
Finally, while it is true that defense counsel misapprehended how the Federal guidelines would be interpreted as to the impact of the murder convictions, this misapprehension did not amount to ineffective assistance of counsel. Indeed, the general rule is that there is no duty to advise as to potential collateral consequences of a guilty plea, Murphy, 73 Mass. App. Ct. at 64, and the defendant cites no case holding that a failure to advise a defendant of the impact of his plea on sentencing in another court can constitute ineffective assistance. Put differently, the defendant's complaint relates to his counsel's handling of the Federal case, not the State case. But equally important, here both the prosecutor and the judge reviewed the same guidelines and formed the same misapprehension. There is no debate that the Federal sentencing guidelines were complex as to the issue presented. A failure to accurately predict how a judge might construe those complex guidelines and case law is not conduct falling measurably below the expectations for the ordinary, fallible lawyer, and is not ineffective assistance of counsel. Commonwealth v. Mahar, 442 Mass. 11, 19 (2004) ("We do not require attorneys to foretell the future: the attorney's advice . . . did not become incompetent because a subsequent judicial opinion made clear an aspect of the [law] that previously was less certain").
Order denying defendant's motion to withdraw guilty pleas affirmed.
By the Court (Milkey, Massing & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 12, 2019.