Opinion
10-P-2117
12-20-2011
COMMONWEALTH v. LUIS D. GOMEZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On May 10, 2007, the defendant, Luis D.Gomez, was indicted by a Superior Court grand jury charging him with possession of a Class B substance with intent to distribute, G. L. c. 94C, § 32A; and possession of a controlled substance in a school zone, G. L. c. 94C, § 32J. On June 24, 2009, the defendant agreed to tender a guilty plea to reduced charges. The plea agreement resolved the Superior Court indictments as well as additional charges pending against the defendant in the District Court. Under the terms of the agreement, the defendant would serve a five to seven year State prison sentence on the possession with intent to distribute charge, and five years probation on the various charges pending in the District Court, on and after the committed portion of the sentence.
The plea agreement also encompassed several charges against Gomez then pending before the District Court, including another drug offense and several firearms and ammunition offenses. As part of the plea agreement, Gomez waived indictment on those charges and pleaded guilty. In exchange, the Commonwealth agreed not to prosecute Gomez as an armed career criminal for the firearms charges.
At the plea colloquy, the defendant pleaded guilty, but sought to remain at liberty for one day in order to visit with his ailing mother and gather his medications before beginning his sentence. The prosecutor expressed concern that the defendant would not return the following day. The judge agreed to permit the defendant to enter the plea and remain at liberty until 9:00 A. M. the following morning, with the following proviso: the judge would sentence the defendant to five to seven years if he returned to court at 9:00 A. M., however, the judge reserved the authority to impose a sentence up to the statutory maximum if the defendant failed to appear. The defendant agreed to these terms.
The defendant failed to appear at 9:00 A. M. the following day. At approximately 10:00 A. M., the judge issued a warrant for the defendant's arrest. The defendant was picked up on the warrant several hours later and brought to court.
At sentencing, the judge heard testimony from the arresting officer, who testified that, at the time the defendant was arrested, he was in a car with his father that was headed in a direction away from the court house. The defendant took the witness stand and claimed that he had every intention of returning to court, as promised, but had problems getting a ride there. Instead of a sentence of five to seven years, the judge sentenced the defendant to a term of twelve to fifteen years in State prison on the possession of cocaine with intent to distribute charge. In addition, he placed the defendant on probation for five years to be served from and after the prison sentence on the District Court charges. The judge informed the defendant that he was imposing the harsh sentence in order to deter future defendants from failing to return to court in similar situations.
On appeal, the defendant argues that on the committed portion of the sentence, the judge (1) gave weight to improper considerations in sentencing him; (2) improperly used the sentencing process to send a personal, political, or philosophical message; and (3) failed to inform him of his right to withdraw his guilty plea before receiving an increased sentence. In addition, he contends that his counsel was ineffective in failing to advise him of his right to withdraw his plea. We vacate the sentence for the reasons set forth below.
The defendant does not challenge that portion of the sentence that placed him on probation for the remaining charges to which he pleaded guilty.
1. Sentence. A trial judge enjoys considerable discretion in devising an appropriate sentence for a criminal defendant. See Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993). In determining the sentence, the judge is entitled to consider a wide range of relevant information about the defendant, including 'the defendant's character, behavior, and background.' Ibid., citing Commonwealth v. Celeste, 358 Mass. 307, 309-310 (1970). However, '[a] defendant cannot be punished for uncharged conduct . . . because such information is not 'tested by the indictment and trial process." Commonwealth v. Stuckich, 450 Mass. 449, 461 (2008), quoting from Commonwealth v. Henriquez, 56 Mass. App. Ct. 775, 779 (2002). A judge should not punish a defendant for unrelated untried criminal offenses by increasing the sentence for the charged offense. See, e.g., Commonwealth v. Sitko, 372 Mass. 305, 313 (1977); Commonwealth v. Coleman, 390 Mass. 797, 805 (1984).
Here, the defendant's failure to appear in court after release on bail or recognizance, which is a separate offense under G. L. c. 276, § 82A, should not have been considered in awarding his sentence. The Commonwealth could have prosecuted the defendant for failure to appear in court, and, if found guilty of that offense, the defendant could have been sentenced to up to one year in a house of correction. See G. L. c. 276, § 82A. Instead, the judge, after eliciting testimony regarding the defendant's failure to make a timely appearance, dramatically increased the defendant's sentence. In effect, then, the judge substituted the sentencing hearing for a criminal prosecution under G. L. c. 276, § 82A, and premised the sentence, in part, on the uncharged conduct of the defendant. See Sitko, supra.
The judge heard testimony from the arresting officer about the defendant's behavior shortly after he was apprehended. He also heard testimony from the defendant, who claimed that he had every intention of appearing but had transportation problems. Additionally, before imposing the sentence, the judge asked the prosecutor whether the defendant was headed toward or away from the court house when he was picked up on the warrant. These actions make clear the judge focused primarily on the defendant's failure to appear when conducting the sentencing hearing.
The Commonwealth argues that the sentence was appropriate because the judge properly considered the uncharged conduct as postconviction conduct bearing on the defendant's character and his amenability to rehabilitation. See Celeste, supra; Commonwealth v. Henriquez, supra. The judge's consideration of postconviction conduct in assessing character, however, is limited to 'similar or recurrent criminal conduct.' Coleman, 390 supra. Here, the defendant's failure to appear does not qualify as such 'similar or recurrent criminal conduct,' and was not relevant in assessing the defendant's character insofar as it bore on the charged drug offense. Ibid.
2. Personal message. At the sentencing hearing, the judge expressed concern about the need to deter future defendants from failing to appear, and made clear that he would have imposed the agreed upon sentence of five to seven years had the defendant returned to court as promised. These statements reinforced the substantial emphasis that the judge placed on the defendant's failure to appear when determining sentencing. In light of the dramatic increase in the sentence, we conclude that resentencing is required.
The judge stated, '[I]t very often happens when someone is going to be sentenced to State [p]rison, especially for a long period of time . . . that they would like some time to make arrangements with their family to get their affairs in order, to say goodbye to loved ones.
'Over the years I've been very understanding about that. I do it in a way that I think protects the interests of the Commonwealth but accommodates the needs of the offender, which is give the person some time, but also say to the person, 'You are going to pay a price if you don't comply with the orders of the [c]ourt, because I will no longer be bound by the recommendation.'
'And I can't do that in the future if the [c]ourt doesn't take that seriously when someone does not follow the orders of the [c]ourt' (emphasis supplied).
3. Withdrawal of guilty plea. Rule 12(c) of the Massachusetts Rules of Criminal Procedure, as amended, 399 Mass. 1215 (1987), allows a defendant who pleaded guilty in reliance on a plea agreement to withdraw that plea if the sentencing judge imposes a sentence above that contemplated in the plea agreement. Before entering a sentence harsher than that to which the defendant has agreed, the judge is required to afford the defendant an opportunity to withdraw his or her guilty plea. See Mass.R.Crim.P. 12(c)(6). In addition, rule 12(c)(2)(A) requires the judge to give the defendant notice of his right to withdraw a guilty plea before entering it. Rule 12 thus provides a procedure 'calculated to give reasonable assurance that a defendant is acting without coercion and with an understanding of what he or she is doing in tendering a plea.' Commonwealth v. Nolan, 19 Mass. App. Ct. 491, 495 (1985).
The defendant argues that the judge erred in denying his postconviction motion to withdraw his plea because the judge did not give him the required notice under rule 12(c)(2)(A) at the earlier plea colloquy. We disagree. Although the judge did not explicitly state that the defendant would have the right to withdraw his plea, where 'the deviation from rule 12 did not significantly affect the substance of the particular requirement, the postconviction (or ' collateral') attack surely fails.' Id. at 496. Here, the plea colloquy was more than sufficient to fairly apprise the defendant of the judge's intentions, and the defendant's plea was knowing and voluntary.
The defendant agreed to return to court by 9:00 A. M. the day following the plea and the judge clearly notified him that he would not exceed the terms of the agreed upon recommendation provided the defendant complied with his promise to return to court. The deviation did not affect, significantly, the substance of rule 12(c)(2)(A)'s notice requirement, and the defendant's motion to withdraw his plea was properly denied. See id. at 495 ('Not every omission . . . from the protocol of the rule entitles a defendant . . . to negate his plea').
4. Ineffective assistance of counsel claim. To constitute ineffective assistance of counsel, a lawyer's conduct must fall 'measurably below that which might be expected from an ordinary fallible lawyer' and must deprive the defendant of 'an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Since, under rule 12(c)(6), the defendant did not have the right to withdraw his plea, his counsel could not have correctly advised him of the existence of any such right. His conduct therefore neither fell below the standard of ordinary fallible lawyer, nor deprived the defendant of an otherwise available defense. Thus, the defendant was not denied the effective assistance of counsel.
Conclusion. For the foregoing reasons, the order denying the motion for new trial is affirmed. Furthermore, the conviction is affirmed, the sentence is vacated, and the case is remanded to Superior Court for resentencing consistent with this memorandum and order.
So ordered.
By the Court (Graham, Rubin & Wolohojian, JJ.),