Opinion
14-P-1949
02-05-2016
COMMONWEALTH v. LUIS BERRIOS.
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
The defendant, Luis Berrios, appeals from the denial of his third motion to withdraw his guilty pleas and for a new trial following his 1996 guilty pleas on charges of being an accessory before the fact to murder in the second degree, and related offenses, in connection with a gang-related shooting that resulted in one victim's death and left several others wounded. The basis for the defendant's claim that his pleas were not valid is "newly discovered" evidence of his plea counsel's alcoholism around the time of the pleas. Because this new information was thoroughly explored by the motion judge, and there is no evidence suggesting deficient performance by plea counsel at the time of the defendant's pleas, we affirm the order denying the motion.
Background. The underlying facts are set forth in Commonwealth v. Berrios, 447 Mass. 701, 702-705 (2006), and need not be repeated here. The defendant, represented by plea counsel, pleaded guilty on January 17, 1996, to being an accessory before the fact to murder in the second degree (among other crimes not at issue here), and received a life sentence. A motion to withdraw the guilty pleas, filed in 2002, was allowed by a judge of the Superior Court, who found that the pleas were not made voluntarily. Id. at 707-708. This court affirmed the order on the alternative ground that his pleas were not intelligently made due to ineffective assistance of counsel. See Commonwealth v. Berrios, 64 Mass. App. Ct. 541, 543 (2005). However, the Supreme Judicial Court disagreed, and held that the defendant's pleas were valid as they were voluntary and he had not demonstrated ineffective assistance of counsel. Commonwealth v. Berrios, 447 Mass. at 708, 711.
The defendant's current attack on the validity of his 1996 pleas is based on newly discovered evidence that his plea counsel was suffering from alcoholism during the time of the 1996 plea. In 2009, plea counsel was subject to a disciplinary hearing before the Board of Bar Overseers (BBO) arising from his representation of a client in a separate criminal matter (the Cintron case). At that BBO hearing, plea counsel admitted to being an alcoholic "for about ten years" and stated that "it affected every aspect of [his] life." He stated that his alcoholism was "at [its] height" and that he was in "the latter stages of the disease" around 2002. However, the BBO report found that "there was insufficient evidence to support a finding that [plea counsel's] alcoholism was causally related to the misconduct in [the Cintron] case." The BBO report also noted that there was no evidence presented that plea counsel's alcoholism affected the other cases he was handling at the time.
On June 29, 2014, the motion judge, who was not the plea judge, conducted a nonevidentiary hearing on the defendant's third motion to withdraw his pleas and for a new trial and reviewed the evidence surrounding plea counsel's alcoholism. The claim was rejected by the judge below: "Even assuming that the evidence of alcohol abuse is newly discovered and that, as a general proposition, alcohol abuse can adversely impact job performance, the Supreme Judicial Court has already considered and rejected the claim that trial counsel was ineffective in this case. . . . Accordingly, the defendant is collaterally estopped from relitigating this issue."
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)." Commonwealth v. Cotto, 471 Mass. 97, 105 (2015). A judge may grant a new trial "at any time if it appears that justice may not have been done." Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). "We review a judge's denial of a motion for a new trial 'to determine whether there has been a significant error of law or other abuse of discretion.'" Commonwealth v. Rodriguez, 467 Mass. 1002, 1004 (2014), quoting from Commonwealth v. Robideau, 464 Mass. 699, 701-702 (2013).
The defendant presents no new evidence in this most recent claim of ineffective assistance of counsel. The doctrine of collateral estoppel ensures that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be relitigated between the same parties in any future lawsuit." Commonwealth v. Lopez, 383 Mass. 497, 499 (1981), quoting from Ashe v. Swenson, 397 U.S. 436, 443 (1970). This doctrine, although rooted in civil proceedings, also applies to criminal cases. Commonwealth v. Cabrera, 449 Mass. 825, 829 (2007). The discovery of plea counsel's admitted alcoholism does not create any new evidence concerning the issues the defendant has already litigated. See Commonwealth v. Berrios, 447 Mass. at 711-716.
In 2006, the Supreme Judicial Court held that the defendant's representation at his plea was constitutionally sufficient. Id. at 711. The supposedly new evidence here of plea counsel's alcoholism adds nothing of a material nature because the defendant has not connected plea counsel's condition to any aspect of his performance on behalf of the defendant. The defendant relies heavily on the outcome of plea counsel's disciplinary hearing; however, the BBO report's findings conclude, to the contrary, that "there was insufficient evidence to support a finding that [plea counsel's] alcoholism was causally related to the misconduct in [the Cintron] case." The report went on to state that, if there was a nexus between the two, "one would expect that alcoholism would have affected his handling of all of his other cases, but there was no such evidence presented."
The defendant, in effect, argues that we should assume that plea counsel's alcoholism affected his representation of the defendant. Plea counsel did not appear intoxicated when meeting with the defendant, nor was there any indication that his legal advice was clouded by his abuse of alcohol. Even were we to assume, contrary to the BBO's findings, that plea counsel's alcoholism caused him to be ineffective in the Cintron case, there is no evidence in the record before us that his alcoholism existed to the same extent at the time of the defendant's pleas, five to six years earlier.
The reasoning that led the Supreme Judicial Court to conclude that the defendant's 1996 guilty pleas were valid is not called into question by the evidence relied upon by the defendant in support of his third motion to withdraw his pleas and for a new trial. See Commonwealth v. Berrios, 447 Mass. at 708-714. There was no abuse of discretion by the judge below relying on the doctrine of collateral estoppel. "[T]he facts and the law are literally the same" as they were when the pleas were found constitutionally valid by the Supreme Judicial Court. Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005).
Order dated June 30, 2014, denying motion to withdraw guilty pleas and for new trial affirmed.
By the Court (Grainger, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 5, 2016.