Opinion
14-P-830
02-19-2016
COMMONWEALTH v. RYAN CONWAY.
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, Ryan Conway, appeals from the denial of his motion to withdraw his pleas of guilty to murder in the second degree, masked armed robbery, and multiple counts of home invasion and armed assault in a dwelling. He claims that his motion should have been allowed because the pleas were not made intelligently and voluntarily due to his low intelligence and ineffective assistance of counsel. He also claims that the motion judge applied the wrong standard of review and abused her discretion in denying his request for an evidentiary hearing. Lastly, the defendant asserts that he is actually innocent. We affirm.
Background. The facts of the case are well summarized and set forth by the motion judge in her memorandum of decision and order and need not be fully repeated here. As the judge explained, the charges stemmed from two separate home invasions in Dorchester. During the first incident, the defendant, while masked and armed with a pistol, entered an apartment on Columbia Road along with his brother, William Conway, and John George. The defendant brandished his weapon and assaulted one of the occupants while his brother and George subdued the other occupants and gathered items of value. Two victims identified the defendant as a participant in the crime.
A few weeks later, the defendant and George, along with Michael Buckley and a fourth individual, returned to the same dwelling. The defendant was masked and armed with a knife, which he used to break into the apartment. During this incident, one of the occupants was stabbed to death. The fourth individual was alleged to have been the person who stabbed the victim causing his death. In a tape-recorded statement, the defendant's brother implicated him in the first home invasion. Thereafter, the defendant admitted his involvement in the second incident.
The defendant filed a motion to suppress his statement on the ground that it was not given voluntarily due to a head injury (a subdural hematoma) and low intelligence. The defendant retained Dr. Malcolm Rogers, who conducted an evaluation and questioned whether the defendant's statement was made freely. He opined that the defendant was susceptible to pressure due to his low intelligence and addiction to Oxycontin. Following an evidentiary hearing at which Dr. Rogers testified, the motion to suppress was denied.
Prior to the scheduled trial date, the defendant was offered the opportunity to plead guilty to the lesser charge of manslaughter if he agreed to testify against the fourth individual. The defendant refused the offer. However, Buckley did accept an offer to plead guilty to manslaughter and agreed to cooperate against the defendant. Ultimately, the defendant agreed to plead guilty to second degree murder and the remaining charges.
The plea hearing was held on March 5, 2003. During the plea colloquy, the judge informed the defendant of the rights he was waiving by pleading guilty. The judge reviewed the elements of the offenses and the joint sentence recommendation. The defendant acknowledged that he understood what the judge was saying. He also said he understood the facts recited by the prosecutor and admitted to them. In response to the judge's questions, the defendant said that he was not under the influence of drugs or alcohol, he was satisfied with counsel's representation, and that his plea had not been coerced. The judge then asked if the defendant "still wish[ed] to plead guilty," to which the defendant responded affirmatively. At the conclusion of the colloquy, the judge determined that the defendant's plea was both intelligent and voluntary and he accepted the plea.
However, less than a month later, the defendant filed a pro se motion to withdraw his guilty plea, claiming that his plea was not voluntary because he did not understand the nature or consequences of pleading guilty and that his response to the judge's questions during the plea colloquy were false and had been coerced by plea counsel. He also claimed that he suffered from attention deficit disorder and that plea counsel failed to adequately investigate his case. Given these assertions, plea counsel was permitted to withdraw from the case and new counsel represented the defendant at the sentencing hearing where the agreed upon sentences were imposed.
Approximately seven years later, on August 26, 2010, the defendant filed a renewed motion to withdraw his guilty pleas and for a new trial. After a nonevidentiary hearing, a different judge than the plea judge, who had since retired, denied the motion in a well-reasoned memorandum of decision.
Standard of review. "A motion to withdraw a guilty plea is treated as a motion for a new trial," Commonwealth v. Cotto, 471 Mass. 97, 105 (2015), which can be allowed when it appears that justice may not have been done. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001) (rule 30[b]). In reviewing the denial of a motion for a new trial, we "determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Williams, 71 Mass. App. Ct. 348, 353 (2008), quoting from Commonwealth v. Milley, 67 Mass. App. Ct. 685, 687 (2006).
Discussion. We have conducted an independent review of the record, including documentary evidence submitted by the defendant in support of his renewed motion. As to each of the defendant's claims, we conclude that the defendant has not met his burden to establish that justice may not have been done. Consequently, we discern no error of law or abuse of discretion in the denial of the defendant's motion. We address the defendant's claims in turn.
1. Presentence motion to withdraw guilty pleas. The judge denied the defendant's motion under the standard of review set forth in rule 30(b), which provides that a judge may grant a defendant's motion only "if it appears that justice may not have been done." The defendant claims that this is the wrong standard because he filed his motion to withdraw his guilty pleas before he was sentenced. Relying on Commonwealth v. DeMarco, 387 Mass. 481 (1982), the defendant argues that rule 12 of the criminal rules, not rule 30(b), governs presentence motions to withdraw guilty pleas, and that the standard of review under rule 12 is more lenient, affording judges "broad discretion to allow a defendant to withdraw his plea before the plea has been accepted and sentence imposed." Id. at 484. Even if we were to accept the defendant's position that rule 12 applies and the appropriate standard of review is "to balance the reason put forward by the defendant against any prejudice to the Commonwealth," Reporter's Notes to Mass.R.Crim.P. 12(c)(6), 47 Mass. Gen. Laws Ann. at 249 (West 2006), the outcome would be no different. The justification put forth in the defendant's motion to withdraw his plea was that his plea was not voluntary and intelligent. As discussed herein, we conclude that the motion judge correctly determined that the defendant's plea was voluntary and intelligent.
Going one step further, the defendant suggests that we adopt the standard set forth in Fed.R.Crim.P. 11(d)(2)(B). The defendant compares what he claims to be the standard under our rule 12 with the "fair and just" standard of review set forth in the Federal rule, which applies when a defendant withdraws a plea of guilty after the court accepts the plea, but before it imposes sentence. As the motion judge noted "no Massachusetts court has applied the 'fair and just reason' standard." We have no similar rule and, even if we were inclined to accept the defendant's suggestion, we have no authority to do so. See generally Commonwealth v. Dube, 59 Mass. App. Ct. 476, 484-485 (2003) ("Totally missing from all this . . . is any authority for this court's power to overrule a decision of the Supreme Judicial Court or to decline to follow the holding of that court's opinions").
2. Validity of guilty pleas. "Due process requires that 'a guilty plea should not be accepted, and if accepted must be later set aside,' unless the contemporaneous record contains an affirmative showing that the defendant's plea was intelligently and voluntarily made." Commonwealth v. Furr, 454 Mass. 101, 106 (2009), quoting from Commonwealth v. Foster, 368 Mass. 100, 102 (1975).
a. Intelligence. The defendant claims he did not understand the nature of the offenses to which he pleaded guilty due to his attention deficit disorder, special needs, disability, low intelligence, and head injuries he sustained from boxing. Specifically, in his supplemental affidavit submitted in support of his renewed motion, the defendant averred that he did not understand the concepts of joint venture and felony murder. He also claims that he did not understand that certain defenses were available to him. The motion judge, who noted that the plea judge thoroughly explained the charges to the defendant at the plea hearing and stated that "the defendant appear[ed] alert and intelligent, that his plea [was] made voluntarily with full knowledge of its consequences," properly rejected these assertions.
"The requirement that the defendant's plea be made intelligently may be met '(1) by the judge explaining to the defendant the elements of the crime; (2) by counsel's representation that [he] has explained to the defendant the elements he admits by his plea; or (3) by the defendant's stated admission to facts recited during the colloquy which constitute the unexplained elements.'" Furr, supra at 107, quoting from Commonwealth v. Correa, 43 Mass. App. Ct. 714, 717 (1997). Here, as the motion judge noted, the plea judge explained the elements of the offenses and the defendant admitted to facts establishing each element of the crimes to which he pleaded guilty. In addition, the transcript indicates that the defendant signed a waiver of rights form. See Furr, supra at 109 ("[T]he defendant's signed waiver may properly be considered as part of the plea record to support a finding that the plea was made intelligently"). Given these circumstances, the motion judge properly concluded that the contemporaneous record adequately demonstrated that the plea was intelligently made.
b. Voluntariness. The defendant also claims that he did not enter his pleas voluntarily because he was pressured by his attorney to plead guilty. The record, however, does not support this assertion and the motion judge acted within her discretion to reject it. As in Furr, Commonwealth v. Quinones, 414 Mass. 423 (1993), and other cases where a similar claim has been made, we look to the plea colloquy and, where, as here, it is apparent that the defendant had many opportunities to tell the judge that he was under pressure and did not do so, the defendant has not demonstrated that his plea was not voluntary. In fact, as we have noted, the defendant stated at the plea colloquy that no one had forced or pressured him to plead guilty. See Commonwealth v. Hiskin, 68 Mass. 633, 640 (2007) (defendant's sworn statements at colloquy sufficient to deny motion to withdraw plea absent credible proof of coercion). Furthermore, other evidence, including trial counsel's affidavit, established that the plea was voluntary. As the judge stated, the evidence against the defendant was overwhelming and, as a result, he was facing the prospect of a life sentence without the possibility of parole. Thus, pleading guilty to second degree murder was a rational decision, one that demonstrates that the defendant was acting in his own best interests and not that he had been coerced.
3. Ineffective assistance of counsel. In order to prevail on his claim of ineffective assistance of counsel, the defendant must show (1) that counsel's behavior fell measurably below that which might be expected from an ordinary fallible attorney, and, as a result, (2) that he was likely deprived of an otherwise available, substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The defendant argues that plea counsel was ineffective because he failed to explain the charges and the consequences of pleading guilty. Plea counsel also allegedly failed to raise the issue of the defendant's cognitive limitations before the judge. In addition, the defendant faults plea counsel for failing to request that the judge rule on his motion to sever prior to the plea hearing and for not requesting a ruling on his pro se motion to withdraw his plea. Even if we were to assume that these assertions are supported by the record, none of them amount to ineffective assistance of counsel. For the same reasons articulated by the motion judge, we conclude that the denial of the defendant's motion on this ground was proper.
The defendant also challenges the assistance provided by the attorney who represented him at sentencing, claiming that he was not prepared. There is likewise no merit to this claim. Not only was counsel prepared, but the sentence imposed was the product of an agreed upon recommendation.
4. Request for evidentiary hearing. "It is beyond dispute that in acting on a motion for a new trial the judge has the discretion to do so on the basis of the supporting affidavits and without an evidentiary hearing." Commonwealth v. Ortiz, 67 Mass. App. Ct. 349, 361 (2006). As stated in Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981), in determining whether an evidentiary hearing is required, the judge is to look at the seriousness of the issues raised and the adequacy of the defendant's showing on those issues. Here, the judge considered the issues carefully and clearly evaluated the evidence submitted by the defendant with particular attention. We conclude that she did not abuse her discretion in denying the defendant's request for an evidentiary hearing.
5. Actual innocence. The defendant's claim of actual innocence rests on his argument that facts -- to which he agreed at the plea colloquy -- were false. However, he has failed to identify which statements were untrue. As the motion judge observed, the facts presented by the Commonwealth were largely based on the defendant's own statement to the police. Aside from his own affidavit, which the judge was entitled not to credit, see Commonwealth v. Lopez, 426 Mass. 657, 661-662 (1998), there was no evidence that the facts recited at the plea hearing were false.
Order denying renewed motion to withdraw guilty pleas and motion for new trial affirmed.
By the Court (Vuono, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: February 19, 2016.