Opinion
No. 11–P–188.
2013-04-10
COMMONWEALTH v. Andres CALDERON.
By the Court (KAFKER, VUONO & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Andres Calderon, appeals from the denial of his motion for a new trial, alleging ineffective assistance of counsel. The Commonwealth concedes “that plea counsel erred” in not informing the defendant of the incorrectness of a ruling on a motion in limine by the judge, and gave “incomplete” “advice concerning the strength of the case.” However, the judge concluded that the defendant had not met his burden of showing prejudice from plea counsel's failings. We discern no error in this conclusion, and therefore affirm.
The judge ruling on the motion for a new trial also ruled on the motion in limine and accepted the defendant's plea.
“To succeed on an ineffective assistance of counsel claim, the consequence of counsel's serious incompetency must be prejudicial. We have defined prejudice in such claims as ‘a “reasonable probability” that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” ‘ “ Commonwealth v. Clarke, 460 Mass. 30, 46–47 (2011) ( Clarke ), quoting from Commonwealth v. Mahar, 442 Mass. 11, 15 (2004). When reviewing a guilty plea, this means that “the defendant has the burden of establishing 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. At a minimum, this means that the defendant must aver that to be the case .” Clarke, supra at 47 (quotation and citations omitted). He must also demonstrate “that a decision to reject the plea bargain would have been rational under the circumstances” because he had a “substantial ground of defence.” Ibid. (quotations and citations omitted). These requirements are not met here. The judge found as a factual matter that plea counsel correctly advised the defendant of the immigration consequences of his plea. Cf. id. at 47–48. The defendant also did not submit an affidavit in support of his motion for a new trial. He therefore failed to aver that he would have gone to trial if not for plea counsel's errors. See id. at 47; Commonwealth v. Pike, 53 Mass.App.Ct. 757, 762–763 (2002). To the extent that motion counsel did aver that the defendant would not have pleaded guilty, the judge discredited the affidavit as hearsay, and was within her discretion to do so. See Commonwealth v. Morales, 453 Mass. 40, 49 (2009). Finally, the judge ruled: “Nothing in the defendant's submissions[ ] establish a reasonable probability that the [C]ommonwealth would have failed in proving the case had it proceeded to trial. The [C]ommonwealth's case was strong and the defendant has not established that a decision to reject the plea was rational under the circumstances.” See Commonwealth v. Mahar, supra at 15; Clarke, supra at 49 (defendant failed to demonstrate why “it would have been rational to plead not guilty and proceed to trial”).
In light of this finding, which the defendant does not challenge on appeal, and the nature of the charge at issue here, it is immaterial whether Padilla v. Kentucky, 559 U.S. 356 (2010), applies to this case. See Chaidez v. United States, 133 S.Ct. 1103, 1113 (2013).
The defendant asserts that the inadmissibility of DiMartino's statements provided the defendant with a substantial ground of defense and a rationale for rejecting the plea bargain. He contends further that any conviction would have been reversed, and without the statements, a required finding of not guilty would have been entered at any retrial. Where, however, there was sufficient other evidence to convict, the error regarding the statements is not alone enough to establish a substantial ground of defense at trial that would justify rejecting the plea bargain. Commonwealth v. Montanez, 410 Mass. 290, 297–298 (1991) (failure to seek suppression not prejudicial in light of other sufficient evidence). See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (“where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial”). Cf. Premo v. Moore, 131 S.Ct. 733, 744 (2011) (“A defendant who accepts a plea bargain on counsel's advice does not necessarily suffer prejudice when his counsel fails to seek suppression of evidence, even if it would be reversible error for the court to admit that evidence”).
The defendant relies primarily on Commonwealth v. Rodriguez, 456 Mass. 578 (2010), to establish the insufficiency of the evidence against him. In that case the defendant was out of the officers' sight for a time with a third individual as well as a cocaine buyer, rendering it speculative whether the cocaine was bought from the defendant or the third individual. See id. at 582–584. In contrast we have held it sufficient to sustain a conviction of distribution where the defendant drove to where a woman was waiting in her car, followed her to a nearby location, reached into the window of the woman's car, returned to her (the defendant's) car, and drove away. The entire encounter lasted fifteen seconds, and cocaine was found in the woman's car. See Commonwealth v. Soto, 45 Mass.App.Ct. 109, 110–111 (1998).
The defendant's case is closely analogous to Soto. The evidence would have been sufficient even without DiMartino's statements or any expert testimony concerning the amount of cash found on the defendant's person. We therefore discern no abuse of discretion or other error of law in the judge's conclusion that the defendant had not established prejudice. See Commonwealth v. Wheeler, 52 Mass.App.Ct. 631, 635–636 (2001).
Order denying motion for new trial affirmed.