Opinion
19-P-908
04-23-2020
COMMONWEALTH v. Dana M. DURFEE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On December 7, 2009, the defendant pleaded guilty to multiple breaking and entering indictments, and a variety of associated indictments. Almost ten years later, the defendant moved to withdraw his guilty pleas; the motion was denied. Thereafter, the defendant moved to reconsider; that motion too was denied. The defendant now appeals from the orders denying his motions. We affirm.
The judge did order the defendant resentenced on two convictions to shorter sentences, as the original sentences exceeded the statutory maximum.
The defendant claims that plea counsel was ineffective by incorrectly advising him that he would not prevail in a motion to sever his trial from his codefendant based on Bruton v. United States, 391 U.S. 123 (1968). The defendant alleges that had he been successful on a motion to sever, he would not have pleaded guilty. He also claims that his plea must be withdrawn because he was unaware that portions of his sentence were illegal. The defendant's claims have no merit.
The defendant claims he pleaded guilty "upon advice of counsel that I was agreeing to a lawful sentence."
Where a defendant seeks to withdraw a guilty plea, the motion is treated as a motion for new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992). We review the judge's denial of the defendant's motion for new trial for a "significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Importantly, "[a] strong policy of finality limits the grant of new trial motions to exceptional situations, and such motions should not be allowed lightly." Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012).
To prevail on a motion to withdraw a plea based on the ineffective assistance of counsel, the defendant must demonstrate (1) performance on the part of counsel falling measurably below that of an ordinary, fallible attorney, that (2) effectively deprived the defendant of a substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where a defendant claims ineffective assistance with respect to counsel's representation incident to a guilty plea, to satisfy the prejudice requirement, the defendant must show (1) a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial, and (2) that a decision to reject the plea bargain would have been rational in the circumstances. See Commonwealth v. Sylvain, 466 Mass. 422, 438 (2013). The defendant has made no such showing.
As a preliminary matter, as the motion judge noted, the defendant did not provide an affidavit from plea counsel in support of his motion to withdraw. Instead, the defendant relied on his own affidavit in which he claimed confusion and that his counsel was ineffective in failing to advise him that he could be tried separately. The motion judge discredited this affidavit. See Commonwealth v. Denis, 442 Mass. 617, 633 (2004) ("defendant's ‘self-serving affidavits and assertions are not sufficient, on their own, to raise a substantial issue’ " [citation omitted] ); Commonwealth v. Grant, 426 Mass. 667, 673 (1998) (motion judge may "reject as not credible the defendant's self-serving, conclusory affidavit"). Furthermore, the Commonwealth could have proceeded to trial without using the codefendant's statements, and thereby not run afoul of the Bruton prohibition. However, since there was no trial, the defendant merely raises a hypothetical situation that impermissibly calls for speculation. See Commonwealth v. Urena, 417 Mass. 692, 701 (1994) ("the defendant must show he was deprived of an actual, not hypothetical, otherwise available, substantial ground of defense as a result of his attorney's conduct"). Therefore, the defendant cannot show that his plea counsel fell "measurably below [that] which might be expected from an ordinary fallible lawyer." Saferian, 366 Mass. at 96.
For the first time on appeal, the defendant claims that "all attempts to reach [plea counsel] were unsuccessful." The defendant did not provide that information to the motion judge and, in any event, he neither provides that information to us under oath nor explains the nature and extent of these attempts.
Moreover, the defendant cannot establish prejudice because he actually received a lenient sentence, which demonstrates the rationality in his decision to plead guilty. See Sylvain, 466 Mass. at 438. By pleading guilty, the defendant was sentenced to a term of probation and incarceration in the house of correction instead of a State prison sentence. As the motion judge noted, "the agreed-upon disposition was favorable to the defendant."
Relying on Commonwealth v. Renderos, 440 Mass. 422 (2003), the defendant also claims that, because portions of his sentence were illegal, his entire sentence should be vacated. However, the defendant's reliance on Renderos is misplaced. Here, on two charges, the defendant was sentenced in excess of that permitted by statute. The judge corrected the illegal sentences, actually reducing the sentences below that to which the defendant and the Commonwealth agreed. Importantly, the judge noted that plea counsel's failure to advise the defendant of the illegal sentences "had no measurable effect on the defendant's available grounds of defense and [his] choice to plead guilty." Accordingly, the defendant has failed to raise a substantial issue rising to an "exceptional situation[ ]" such that a new trial should have been granted. Gordon, 82 Mass. App. Ct. at 394. The motion to withdraw the guilty plea, and the motion for reconsideration, were properly denied.
In Renderos, 440 Mass. at 435, the Supreme Judicial Court determined that the defendant's sentences of suspended incarceration along with lifetime community parole supervision, "constituted an integrated package, each piece dependent on the other, which cannot be separated."
The defendant was improperly sentenced to two and one-half years in the house of correction on indictments 27-04 and 27-05, where the maximum under the statute is two years.
The defendant was properly sentenced to two and one-half years on indictments 27-01 and 27-02. Because the defendant served all his sentences concurrently, he suffered no prejudice.
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Order denying motion to withdraw guilty plea affirmed.
Order denying motion for reconsideration affirmed.