Opinion
20-P-982
02-22-2022
COMMONWEALTH v. FAROUK F., a juvenile.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
In 1995, the Commonwealth sought and obtained three delinquency complaints against the juvenile based on allegations that he committed sexual assaults against two different victims, K.S. and B.T. In 1996, at age seventeen, the juvenile accepted a plea agreement, pursuant to which the juvenile pleaded delinquent to one count of statutory rape of K.S. in violation of G. L. c. 265, § 23, as amended through St. 1974, c. 474, § 3, at a time when they were both fifteen years old. Charges of sodomy and rape of B.T. in a separate incident when she was fourteen and the juvenile was sixteen were placed on file with no delinquency finding. Over two decades later, the juvenile sought to withdraw his plea by filing a motion for new trial in which he alleged that he had received ineffective assistance of counsel. A judge of the Juvenile Court denied the motion and the juvenile appealed. We affirm.
Discussion.
1. Ineffective assistance of counsel.
To succeed on a motion for a new trial based on ineffectiveness of counsel, the juvenile must first show there has been a "serious incompetency, inefficiency, or inattention of counsel --behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer . . . ." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The juvenile must then show that counsel's conduct prejudiced him in that it "likely deprived [him] of an otherwise available, substantial ground of [defense] ." Id. at 96. Regarding the prejudice prong, "there ought to be some showing that better work might have accomplished something material for the defense." Commonwealth v. Ogden 0., 448 Mass. 798, 806 (2007), quoting Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). "[The] standard for determining whether there has been ineffective assistance of counsel is the same for both adult criminal trials and juvenile proceedings." Ogden 0., supra. The juvenile has not met his burden here.
The juvenile claims that his trial counsel failed to investigate potentially exculpatory evidence that during a three-way phone call between K.S., the juvenile, and K.S.'s friend, D.D., K.S. had denied that the juvenile raped her. The juvenile mentioned this phone call to the police officer who interviewed him in 1995. The officer included the information in a police report. The juvenile claims a reasonably prudent attorney would have investigated this phone call by hiring an investigator or interviewing D.D. themselves.
As an initial matter, the juvenile admitted to conduct that was sufficient to establish the offense of statutory rape. Specifically, the juvenile told the police that he attempted to have sex with K.S. by attempting to put his penis into her vagina but it would not fit. See Commonwealth v. Donlan, 436 Mass. 329, 336 (2002) ("element of penetration required for a rape conviction is established by evidence that [the juvenile] touched or came into contact with the victim's vagina, vulva, or labia"). See also Commonwealth v. Centeno, 87 Mass.App.Ct. 564, 568 (2015); Commonwealth v. Wallace, 76 Mass.App.Ct. 411, 414 (2010) ("A conviction of rape of a child, more commonly known as 'statutory rape,' does not require proof that force was used or consent withheld").
The juvenile's mother also testified at the motion hearing that the juvenile told police that he and K.S. tried to have sex, but they stopped when she said that it hurt.
In addition, the juvenile has not established that the phone conversation with D.D. took place. He does not offer any statement from D.D. or other corroborating evidence about the alleged conversation. The only evidence about the conversation is the juvenile's self-serving unsworn statement in the police report. The motion judge was not required to accept the truth of the juvenile's statement. See Commonwealth v. Colon, 439 Mass. 519, 530 (2003). Even assuming that the conversation did occur, the fact that K.S. when confronted by the juvenile may have denied being raped in a colloquial sense does not undermine his own admission to statutory rape. In any event, the juvenile had the opportunity to cross-examine K.S. at the transfer hearing, where K.S. could have been questioned about the conversation.
Even if D.D. were to testify that the victim denied that the juvenile raped her, the testimony would be hearsay and only admissible to impeach the victim's testimony. However, failure to impeach a witness does not rise to the level of ineffective assistance. See Commonwealth v. Watt, 484 Mass. 742, 763 (2020). See also Commonwealth v. Bart B., 424 Mass. 911, 916 (1997) .
Finally, counsel negotiated a favorable plea agreement for the juvenile -- in exchange for the juvenile's pleading delinquent to one count of statutory rape, the Commonwealth agreed to place the remaining counts against him on file without any adjudication of delinquency. "[T]he highly generous sentence recommendation that the defendant received in light of the offenses with which he was charged strongly supports the conclusion that the defendant chose voluntarily to plead to those offenses." Commonwealth v. Furr, 454 Mass. 101, 112 (2009). Thus, the juvenile did not satisfy his burden of showing that counsel "likely deprived the defendant of an otherwise available, substantial ground of [defense]." Saferian, 366 Mass. at 96.
2. Competency.
The juvenile argues that counsel was ineffective for not raising the issue of competency before the plea and that the motion judge misapplied the competency statute in two ways: (1) the judge set the threshold for competence to an erroneously low level, and (2) the judge improperly relied on the defendant's past court involvement where competency had not been raised as an issue to conclude the juvenile was competent at the time of his delinquency plea. We disagree.
The Commonwealth generally has the burden to show a defendant understandingly and voluntarily made a guilty plea. See Commonwealth v. Yardley Y., 464 Mass. 223, 227 (2013), citing Commonwealth v. Lopez, 426 Mass. 657, 660-661 (1998). However, here, the records were properly disposed of ten years after the delinquency plea, pursuant to S.J.C. Rule 1:11, § 7, as amended, 421 Mass. 1301 (1995). In this circumstance, the burden of challenging the presumption of competence rests with the juvenile. As explained by the Supreme Judicial Court,
"[W]hen the defendant leaves his guilty pleas unchallenged for a lengthy period of time, so that the contemporaneous record of the plea is lost (by proper destruction of the stenographer's notes or erasure of the tape recording pursuant to court rules), and means of reconstruction are made impractical or impossible due to . . . the unavailability of witnesses, the inherent weaknesses and failure of recollection, and other factors commonly associated with the passage of time. . . . [T]he absence of a record, and the inability effectively to reconstruct it, may be directly attributed to the defendant's delay and may be said to be the defendant's fault."Lopez, 426 Mass. at 661. A defendant is competent if he has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and . . . has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960). See Commonwealth v. Hill, 375 Mass. 50, 52 (1978).
Here, prior to the plea, upon request of the juvenile's counsel, a licensed psychologist, Louis Cerbo, evaluated the juvenile. Cerbo raised no concern that the juvenile was incompetent to stand trial or otherwise understand the court process. Rather, Cerbo concluded that the juvenile had low verbal and literacy abilities compared to his peers, but he understood the proceedings and the severity of the charges against him. The defendant's plea counsel testified that his memory had faded in the intervening decades, but he "never felt that the [juvenile] had a problem understanding him" and "[a]s a matter of practice he would have a client evaluated if he believed that there were issues of comprehension."
The juvenile claims that his second grade reading level, struggles with short-term recall, and low verbal intelligence score rendered him below the legal competency threshold at the time of his guilty plea. However, "a defendant's low IQ alone does not determine whether he is competent to . . . enter a guilty plea." Commonwealth v. Cano, 87 Mass.App.Ct. 238, 242 (2015). Cf. United States v. Gaines, 295 F.3d 293, 299 (2d Cir. 2002) ("[A]n inability to read or write does not, by itself, establish that the suspect is incapable of making a voluntary and intelligent decision"); United States v. Young, 529 F.2d 193, 195 (4th Cir. 1975) (Factors such as "a below-average I.Q., [and] limited education and reading problems, . . . are not in themselves determinative of the voluntariness of a waiver"). Instead, "the test is framed in terms of the defendant's functional abilities . . . ." Cano, supra, quoting Commonwealth v. Goodreau, 442 Mass. 341, 350 (2004). In contrast to the lack of evidence provided by the juvenile, the record contains affirmative evidence that the juvenile was competent, including Cerbo's evaluation that the juvenile understood the charges against him were "very serious" and the fact that the juvenile's counsel believed the juvenile was competent.
In addition, contrary to the juvenile's argument, the motion judge did nothing improper by noting in a footnote that the juvenile's competency had not been challenged in a prior delinquency proceeding. Given the paucity of contemporaneous evidence that the juvenile was incompetent in 1996, the observation was an indication that the motion judge was aware of the juvenile's record. Nothing in the judge's thoughtful decision indicates mention of the prior proceeding was anything more than an observation.
The defendant has failed to meet his burden of proof on the issue of competency. He has similarly failed to meet his burden of proof on the issue of ineffective assistance of counsel for not raising the issue of competency. Saferian, 366 Mass. at 96.
3. Delay.
The juvenile seeks a new rule that a motion judge may not hold delay in filing postplea motions against a defendant when the defendant entered the plea as a juvenile.
Here, the juvenile was seventeen years and nine months old when he entered his guilty plea. After turning eighteen years old soon following his plea, the juvenile had over twenty years as a legal adult to file a motion for a new trial to vacate his guilty plea. Even if we accepted the juvenile's argument that youths are not mature until they transition from the "emerging adults" stage into "fully formed 'grown-ups, '" and assuming the court records were destroyed at the earliest date possible, the juvenile had nearly three years after he attained the age of twenty-five to file such a motion when the court records would still have been available. We discern no abuse of discretion in the motion judge's considering the juvenile's delay in filing his motion.
Order denying motion for new trial affirmed.
The panelists are listed in order of seniority.