Opinion
No. 77-3186-93
January, 2001.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA
This matter comes before the court on the defendant's motion to withdraw guilty pleas. On August 8, 1978, the defendant pled guilty to eight indictments and was sentenced to serve 3-8 years concurrently with sentences that he was already serving on unrelated convictions. The defendant now alleges that his pleas were induced by counsel's ineffective assistance and therefore he is entitled to a new trial. The Commonwealth opposes the motion. For the following reasons, the defendant's motion is DENIED .
BACKGROUND
On March 19, 1977, the defendant Michael C. Habicht ("Habicht"), and his friends, David Morrison ("Morrison") and Donna Ferguson ("Ferguson"), entered the Jefferson Park Teen Center in Cambridge ("Teen Center"). Upon arrival, there was an altercation between Habicht, his friends, and Mark Burke ("Burke"), a youth counselor at the Teen Center. Morrision shot and wounded Burke. Habicht, Ferguson and Morrision were arrested as they attempted to flee the scene.
Habicht was arraigned on March 21, 1977 in Cambridge District Court on charges of assault and battery by means of a dangerous weapon; assault by means of a dangerous weapon; accessory after the fact to assault and battery by means of a dangerous weapon; assault and battery; operating a motor vehicle so as to endanger; and refusing to stop a motor vehicle for a police officer. Habicht retained attorney Martin K. Leppo ("Leppo") to defend him. According to court documents, Habicht was represented at his arraignment by Leppo's associate, attorney Anthony Traini ("Traini").
On July 14, 1977, a Middlesex grand jury returned indictments charging that on March 19, 1977, Habicht committed the aforementioned crimes, in addition to operating a motor vehicle without a license and failing to stop for a red light. Habicht was arraigned in Middlesex Superior Court on August 9, 1977, and entered pleas of not guilty. On August 31, 1977, Traini signed the Superior Court pre-trial discovery stipulation on behalf of Habicht.
On August 8, 1978, Habicht changed his plea to guilty on all eight indictments. Habicht was brought before Judge Tisdale, who imposed the following concurrent sentences, to be served concurrently with sentences Habicht was already serving for unrelated convictions: three to eight years for assault and battery by means of a dangerous weapon; three to five years for assault by means of a dangerous weapon; and three to six years for accessory after the fact to assault and battery by means of a dangerous weapon. The convictions for assault and battery, operating to endanger, refusing to stop for a police officer, operating without a license, and driving through a red light, were placed on file.
In May, 1993, Habicht requested a transcript of the August 8, 1978, hearing. On June 1, 1993, the court notified Habicht that the transcript from his plea colloquy no longer existed, as the requisite time period had expired for reporters to retain the transcript.
On May 2, 1997, Habicht filed a motion for a new trial seeking to withdraw his guilty pleas. On October 29, 1997, the Commonwealth filed its opposition. Thereafter, Habicht withdrew his motion for a new trial before the Court issued a decision. The present motion was filed on October 13, 2000.
DISCUSSION
An attack on the validity of a guilty plea is treated as a motion for a new trial. See Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997). A judge may grant a motion for a new trial "if it appears that justice may not have been done." Commonwealth v. DeMarco, 387 Mass. 481, 482 (1992); Mass. R. Crim. P. 30(b). Judges are to apply the standard set forth in Rule 30(b) "rigorously" and should only grant such motion if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth. Commonwealth v. Fanellli, 412 Mass. 497, 504 (1992).
The decision whether to decide the motion on the papers or to hear oral testimony is left largely to the sound discretion of the judge. SeeCommonwealth v. Stewart, 383 Mass. 253, 257 (1981). In determining whether a "substantial issue" meriting an evidentiary hearing under Rule 30 has been raised, the court looks not only at the seriousness of the issue, but also to the adequacy of the defendant's showing on the issue raised. Id. Thus, the judge may decide the motion solely on affidavits, whose credibility, weight and impact are entirely within the judge's discretion. Pingaro 44 Mass. App. Ct. at 48. The judge is not required to believe them even if they are undisputed Id. at 48; see alsoStewart 383 Mass. at 259, ("Whether or not a substantial issue is presented must . . . be determined on the [face] of the motion and affidavits and the court [is] fully warranted in dismissing a motion . . . as to which the factual allegations are `obscure' or `impressionistic' or `conclusory'").
I. Motion to Withdraw Guilty Plea
In seeking to overturn a guilty plea, the defendant has the burden of presenting "some articulable reason which the motion judge deems a credible indication that the presumptively proper guilty plea proceedings were constitutionally defective." Pingaro 44 Mass. App. Ct. at 50. Here, in addition to his own affidavit, Habicht has submitted an affidavit by Ferguson and David Nolan, a witness who was socializing at the Teen Center, to support his contention that his change of plea was the product of Traini's ineffective assistance.
In his affidavit, Habicht states that on August 8, 1978, he was expecting to go to trial with Leppo representing him on the theory of self defense. According to Habicht, he was surprised to see Traini instead of Leppo in court. Traini told Habicht that Leppo had a prior commitment and had sent him to handle the case. Although Habicht insisted to Traini that he was not guilty of any crime and acted in self defense, Habicht claims that Traini told him that his version of events "meant nothing," and advised him to "seriously consider pleading guilty." Traini also told Habicht that the prosecutor was offering a three to eight year sentence in exchange for a guilty plea, and that if Habicht refused it, trial would begin that day with Traini as his lawyer. Habicht states in his affidavit:
"Although I certainly didn't want to go to trial with Mr. Traini defending me, I didn't believe I was guilty, and that I wanted to fight the charges. Mr. Traini then said that here was simply no defense available for me and that I would definitely be convicted if I went to trial. He continued to insist that I should accept the three to eight years being offered by the prosecutor, and concluded our discussion by saying that `it's the best you're going to get."
The affidavits submitted by Ferguson and Nolan generally support Habicht's claim of self defense. Both witnesses state that on March 19, 1977, Habicht defended himself when Burke, without any provocation, punched Habicht in the face.
The record submitted by the Commonwealth, however, refutes Habicht's claim of coercion. Court documents show that prior to Habicht's change of plea hearing, Traini represented Habicht at his arraignment in Cambridge District Court and later signed a stipulation for pre-trial discovery. The record also contains a letter written by Leppo to the District Attorney's Office on May 15, 1978, which states in pertinent part:
"Mr. Habicht is presently incarcerated at the Suffolk County Jail after having pleaded guilty in the Suffolk Superior Court . . . and receiving a sentence of three to five at M.C.I Walpole with another sentence of three to five, M.C.I. Walpole from and after.
Mr. Habicht is also scheduled to be sentenced in the United States District Court
. . . on June 5, 1978. Accordingly, it is my understanding that the recommendation from your office will be an M.C.I. to Concord to run concurrent with the Suffolk cases.
It would be appreciated if you would advise me when we might bring Mr. Habicht before the Court for his offer of change of plea."
Thus, contrary to Habicht's implying that he did not know Traini and was surprised when Traini appeared at court instead of Leppo, the record shows that prior to Habicht's change of plea hearing, Traini had substituted on behalf of Leppo in Habicht's case at least twice. SeePingaro, 44 Mass. App. Ct. at 46 (significant factor in determining the substance of motion to withdraw guilty plea was the continuous representation by counsel for over a year prior to the defendant entering his guilty plea). Moreover, the active and productive efforts of Leppo, Habicht's privately retained counsel, in engaging in negotiations three months prior to Habicht's change of plea hearing and in ultimately obtaining a concurrent sentence, undercuts Habicht's insinuation of dissatisfaction with Traini's effectiveness and plea coercion. Id. at 53.
Almost twenty three years have elapsed between Habicht's guilty plea and his challenge to the voluntariness of that plea. Habicht's delay in not directly attacking his plea suggests that when the pleas were made, he "was satisfied with his arrangement" and became dissatisfied only when he later became aware that the plea might subject him to "unforeseeable, but possible consequences." See Commonwealth v. Lopez, 426 Mass. 657, 663 (1998) (defendant who filed motions to withdraw his guilty pleas entered 10-20 years prior in order to challenge an enhanced federal sentence did not provide sufficient credible or reliable evidence to support his claims of coercion); see also Pingaro, 44 Mass. App. Ct. at 54 (defendant's good faith and credibility weakened by unexplained 15 year delay in bringing motion to withdraw guilty plea). Taking all of the circumstances into consideration, seeid., this Court finds that Habicht has failed to present any credible or substantial issue to warrant an evidentiary hearing, and concludes that his motion to withdraw his guilty plea must be DENIED .
The Commonwealth suggests that Habicht's motion is "inspired by a desire to avoid enhanced penalty for multiple prior convictions."
II. Ineffective Assistance of Counsel
Habicht's ineffective assistance of counsel claim is based on (1) Traini's coercing him to plead guilty, and (2) Traini's dual representation of both Habicht and Ferguson. Specifically, "the conflict was between Attorney Traini's duty to limit Ferguson's legal exposure to the facts before, during, and after the incident at the Teen Center, and Attorney Leppo's duty to represent the best interests of Habicht, which undoubtedly would entail whether and how to examine (or cross examine) Ferguson as a witness, if she was called to testify."
Ordinarily, claims of ineffective assistance of counsel are governed by the Saferian standard which requires the defendant to show (1) serious incompetency, inefficiency or inattention of counsel falling "measurably below that which might be expected from an ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and that (2) counsel's inadequacies were such that the defendant "was likely deprived of an otherwise available, substantial ground of defense." Id. Because the Court has already found that Traini's behavior did not constitute coercion to warrant Habicht's withdrawal of the guilty pleas, application of this standard is not necessary.
The defendant bears a heavy burden in establishing ineffective assistance of counsel resulting in the granting of a new trial. SeeCommonwealth v. Brookins, 33 Mass. App. Ct. 626, 631 (1992), rev'd on other grounds, 416 Mass. 97 (1993). When an ineffective assistance claim is based on counsel's conflict of interest, a defendant must present "adequate evidence of its existence . . . detailing the precise character of the alleged conflict." Commonwealth v. Martinez, 425 Mass. 382, 388, 389 (1997). Conflict is not automatically inferred from dual representation. Id.; see also Duest I, 26 Mass. App. Ct. 137, 149 (1988) (no conflict of interest will be inferred simply from defendant's allegation regarding the existence of joint representation). CompareCommonwealth v. Walter, 396 Mass. 549, 555 (1986) (when attorney simultaneously represents a criminal defendant and prosecution witness, there is a potential for a serious conflict of interest). Additionally, when a defendant can show no more than a potential conflict, the defendant must also show that the conflict resulted in actual prejudice.Commonwealth v. Fogarty, 419 Mass. 456, 459 (1995).
In this case, Habicht has provided Ferguson's affidavit in which she states:
"I was charged in Cambridge Juvenile Court . . . I was represented in these matters by Attorney Anthony Traini. These cases were eventually dismissed. I understood that in exchange for the dismissal, I would not have to testify in the cases against Michael Habicht or David Morrison."
Habicht has also submitted his own affidavit stating that "from the time I retained Leppo through the time I entered my plea, I did not appreciate that there was a potential conflict in Leppo representing me and Traini representing Ferguson. No one from Leppo's office discussed or explained the nature of the conflict to me."
This case differs from those situations in which courts have typically found that a conflict existed, e.g.; where an attorney represents co-defendants with inconsistent or contradictory lines of defense, or where an attorney or an associate maintains an attorney-client relationship with a material prosecution witness. See Walter, 396 Mass. at 555 and cases cited therein; see also Commonwealth v.Martinez, 425 Mass. 382 (1997) (conflict existed where defense counsel simultaneously represented key Commonwealth witness and breached his confidential relationship with the defendant by communicating to the witness client that he felt the defendant was lying about his case). In contrast, there is nothing in either Habicht's or Ferguson's affidavit that creates a genuine conflict of interest. Neither affidavit contains the dates during which Traini represented Ferguson. See Fogarty, 419 Mass. at 459 (no conflicting loyalties where attorney's representation of witness ended approximately 10 months before the attorney's representation of the defendant). In any event, the most the affidavits suggest is that at some point Traini may have represented both defendants; neither describes how Habicht was actually prejudiced by Traini's representation of Ferguson. Merely alleging that an examination of a witness at trial may give rise to a conflict, especially where, as here, the defendant plead guilty and gave up his right to trial, is insufficient to give rise to a claim of ineffective assistance of counsel. Habicht has not made an adequate showing of Traini's ineffective assistance to warrant an evidentiary hearing, and thus, Habicht's motion for a new trial is DENIED .
ORDER
For the foregoing reasons, the defendant's motion to withdraw his guilty plea is DENIED .
_____________________________ Raymond Brassard Justice of the Superior Court
DATED: January, 2001