Opinion
No. 11–P–909.
2013-01-25
COMMONWEALTH v. Pedro CLAUDIO, Jr.
By the Court (VUONO, GRAINGER & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals the denial of his postconviction motion to withdraw guilty pleas, properly treated as a motion for new trial. Commonwealth v. Balliro, 437 Mass. 163, 166 (2002). He argues that he was incompetent when he tendered his plea to charges of murder in the second degree and breaking and entering a dwelling house while armed with intent to commit a felony, and that he received ineffective assistance of counsel. We affirm. We note as an initial matter that the arguments raised by the defendant have been waived. This is the defendant's third motion raising the same issues. See Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001); Commonwealth v. Pisa, 384 Mass. 362, 366 (1981). Even if the same arguments had not been raised previously, they still would be waived because the defendant could have raised, but did not raise, them in his first motion for new trial. Commonwealth v. Randolph, 438 Mass. 290, 293 (2002).
The defendant's pro se notice of appeal was filed late by about three weeks, see Mass.R.A.P. 4(b), as amended, 431 Mass. 1601 (2000). However, the Superior Court clerk mailed the order denying the motion to withdraw guilty pleas to the wrong correction facility, and the defendant received the order at the correct facility more than thirty days after it issued. The Commonwealth commendably notes the mitigating circumstances and does not press a timeliness objection to the appeal. In light of these circumstances and in the interest of judicial economy, we deem a motion for extension of time for filing a notice of appeal to have been made, and it is allowed nunc pro tunc. Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). See Commonwealth v. White, 429 Mass. 258, 263–265 (1999).
The defendant's jury trial conviction of murder in the first degree was reversed because of an error in the instructions, Commonwealth v. Claudio, 418 Mass. 103 (1994). The defendant thereafter tendered his plea to the lesser charges, without admitting guilt. See North Carolina v. Alford, 400 U.S. 25, 37 (1970).
Although the arguments are waived, we nonetheless will grant relief if the claimed errors create a substantial risk of miscarriage of justice. Id. at 294. Here, there was no error because the judge did not abuse his discretion in denying the motion and, therefore, there was no substantial risk of a miscarriage of justice. Commonwealth v. Grace, 397 Mass. 303, 307 (1986). The motion judge (who was also the plea judge) was entitled to rely on the transcript of the plea proceedings, as well as his own memory of them. Commonwealth v. Garvin, 456 Mass. 778, 799–800 (2010). The transcript reflects that the defendant understood the consequences and ramifications of his plea, and was able to consult with his lawyer. In fact, the defendant consulted with his lawyer (with the judge's leave) when he indicated that he did not fully understand the mechanics of his Alford plea. See North Carolina v. Alford, 400 U.S. 25 (1970). The defendant and his attorney both represented that the defendant's mental condition was under control and he was being appropriately medicated. See Commonwealth v. Robbins, 431 Mass. 442, 448–449 (2000). All aspects of the plea proceedings are consistent with the conclusion that the defendant entered into the plea knowingly and willingly. Nothing in the record would suggest that the defendant was incompetent at the time he tendered his plea, or that the judge should have held a hearing to determine his competence.
We do not consider any materials that were not before the motion judge, including the defendant's affidavit, which was prepared after the defendant noticed this appeal. Commonwealth v. Vasquez, 462 Mass. 827, 845 (2012).
“The test for determining competency is ‘whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.’ “ Commonwealth v. Goodreau, 58 Mass.App.Ct. 552, 558 (2003), S. C., 442 Mass. 341 (2004), quoting from Commonwealth v. Hill, 375 Mass. 50, 52 (1978).
“The judge must hold a competency hearing if there exists ‘a substantial question of possible doubt’ as to whether the defendant is competent” to plead guilty. Robbins, supra at 447, quoting from Commonwealth v. Crowley, 393 Mass. 393, 398–399 (1984). The presence of mental illness does not, by itself, warrant a competency hearing or render a defendant incompetent. Id. at 448.
Furthermore, the record does not support the defendant's claims of ineffectiveness of counsel. The transcript shows that the defendant's lawyer was actively involved in his plea, and attentive to the defendant's questions and interests. Moreover, the defendant's argument that his counsel coerced the defendant into accepting the plea is belied by his own statement to the contrary during the colloquy.
Order denying motion to withdraw guilty plea affirmed.