Opinion
14-P-1095
07-03-2015
COMMONWEALTH v. ANDY COAKLEY.
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, Andy Coakley, was indicted for threats to commit a crime (three counts), assault and battery by means of a dangerous weapon (two counts), intimidation of a witness, stalking, and mayhem. After trial had begun, the defendant pleaded guilty to seven of the eight charges. On appeal from the order denying his motion for a new trial, the defendant contends that he was deprived of the effective assistance of counsel because his counsel incorrectly advised him that a particular sentence would be imposed if he pleaded guilty, and that he would not have pleaded guilty without this assurance. We reverse.
The Commonwealth filed a nolle prosequi on the remaining charge.
Discussion. A guilty plea is manifestly unjust where it is not entered intelligently and voluntarily. See Boykin v. Alabama, 395 U.S. 238, 242 (1969); Commonwealth v. Morrow, 363 Mass. 601, 603 (1973). False assurances or advice that otherwise falls below that to be provided by ordinary, fallible plea counsel may form the basis of an ineffective assistance claim. See Padilla v. Kentucky, 559 U.S. 356, 368-369 (2010); Commonwealth v. Walker, 443 Mass. 867, 871 (2005).
During a lobby conference before trial, the judge stated that if the defendant pleaded guilty, he would sentence the defendant to six years and one day on the mayhem charge and at least eight years of subsequent probation on the other charges. The Commonwealth did not strongly oppose this disposition because the victim would not have to testify. The Commonwealth also informed defense counsel that it would oppose the proposed sentence if trial commenced. However, the judge did not tell the parties at any time that, in his view, the proposed disposition was valid only until trial.
Despite the best efforts of defense counsel, the defendant declined the pleas. Just before the trial began, the defendant changed his mind and asked to enter the guilty pleas. The judge declined to permit him to plead at that time, stating that he would empanel the jury first. Once the jury were empanelled, the defendant changed his mind again and proceeded to trial.
After the victim testified on direct examination, the defendant expressed an interest in changing his pleas. Defense counsel sought a further lobby conference with the judge, a request the judge denied. Defense counsel consulted with the clerk regarding a request for the reduction of the probationary term. According to defense counsel, the clerk reported the judge's agreement. The judge, in his findings on the motion for new trial, stated he was perplexed by this statement set forth in defense counsel's affidavit accompanying the motion for new trial, as the judge had no memory of such an inquiry and it is not his practice to engage in ex parte communications. Defense counsel did not raise the parameters of the sentence at the outset of the plea colloquy.
The mid-trial pleas resulted in a sentence of not less than nine years and not more than ten years in State prison for the mayhem conviction, and five years of supervised probation for the plea to one of the indictments charging assault and battery by means of a dangerous weapon. Defense counsel did not object before the jury were released, but filed a motion to revise and revoke the next day, stating that he had assured his client of the six year sentence discussed before trial, and requesting that the judge revise the sentence. No action was taken with regard to this motion.
Guilty findings were entered on the remaining charges and they were placed on file.
The defendant then filed a motion for new trial asserting ineffective assistance of counsel. The judge held an evidentiary hearing. He found that defense counsel had assured the defendant that if he pleaded guilty, he would be sentenced to six years and one day on the mayhem charge, plus a term of probation. The judge also found that without this assurance, it is unlikely that the defendant would have agreed to the pleas. The judge further found that during the plea colloquy the defendant was apprised of the statutory maximum sentence, that the defendant stated that he understood the elements of the charges, the statutory sentencing ranges, the constitutional rights he waived by pleading guilty, and that he could withdraw his pleas only if the judge's sentence exceeded the Commonwealth's recommendation. The defendant responded in the negative when asked by the judge if he had received any promises or inducements to plead guilty. The judge concluded that the defendant's guilty pleas were made intelligently and voluntarily.
We review the denial of the motion under the now familiar Saferian standard. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The judge found, and we agree, that defense counsel was ineffective because he gave the defendant patently incorrect advice regarding the sentencing consequences of the plea in circumstances in which ordinary, fallible counsel would have known that he could not guarantee the judge's sentence. Where plea counsel "gives plainly incorrect advice . . . there could be no certainty that a defendant's decision to waive his right to a jury trial by entering pleas of guilty was made intelligently or voluntarily, with a full understanding of the consequences". Commonwealth v. Walker, 443 Mass. at 871-872. A constitutional infirmity of this type creates a substantial risk of a miscarriage of justice that "justif[ies] our granting the defendant's request to withdraw his pleas" upon a showing of prejudice. Id. at 872. The judge's factual finding that the defendant would not have pleaded guilty and likely would have continued with trial in the absence of the deficient advice establishes the existence of prejudice. See Commonwealth v. Clark, 460 Mass. 30, 47 (2011).
The Commonwealth asserts that the defendant is not entitled to relief because the judge found that the plea colloquy effectively eliminated any reliance the defendant may have had on defense counsel's advice, and therefore eradicated the prejudice. See Commonwealth v. Morrow, 363 Mass. at 604-607 (finding plea colloquy superseded counsel's inaccurate advice and rendered defendant's guilty pleas voluntary and intelligent). It is undeniable that "a defendant's sworn statements during a guilty plea colloquy are statements of consequence and not mere conveniences later to be discarded." Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 634 (2007). The present case is distinguishable from Morrow, however, because in Morrow the judge asked the defendant if he understood "that no matter what indications you may have gotten from your lawyer . . . that is not binding on the Court? It is fully within my discretion to give you what sentence in my own discretion that I deem proper?" 363 Mass. at 604 n.3. Here, the judge's questions did not put the defendant squarely on notice that he could not rely on defense counsel's assurances regarding the sentences.
Moreover, the other facts known to the defendant were equivocal with respect to whether the judge would impose the previously discussed sentences. The judge had, before trial, advised the prosecutor and defense counsel regarding the disposition of the case, but did not explicitly state that the disposition would be retracted if the case went to trial, and in fact deferred taking the defendant's subsequent offer to plead before trial until after the empanelling of the jury. Defense counsel's misreading of the situation was ineffective, and the judge so found, but the fact that counsel (who should have known better) was confused underscores the notion that the defendant's acquiescence at the plea colloquy was not fully intelligent and voluntary.
In view of the judge's factual finding that the defendant would not have pleaded guilty without defense counsel's assurances, the generic reference to "promises and inducements" in the plea colloquy was insufficient to place the defendant on notice that the judge was referring to the advice of counsel. In the absence of such notice, the judge erred as a matter of law in concluding that prejudice associated with counsel's deficient advice was dissipated because the defendant's waiver was intelligent and voluntary. "[T]o be intelligent a defendant's plea must be made with a 'sufficient awareness of the relevant circumstances and likely consequences.'" Commonwealth v. Hunt, 73 Mass. App. Ct. 616, 621 (2009), quoting from Brady v. United States, 397 U.S. 742, 748 (1970).
The order denying the motion for a new trial is reversed and a new order is to enter allowing the motion.
So ordered.
By the Court (Fecteau, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 3, 2015.