Opinion
16-P-1229
11-15-2017
COMMONWEALTH v. STEPHEN M. HEMPHILL.
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
Almost thirty years after pleading guilty to a reduced charge of second degree murder, the defendant, Stephen M. Hemphill, filed a pro se motion for new trial claiming that his trial counsel failed to properly investigate or consider his mental health history in advising him to plead. The motion was not accompanied by an affidavit from the defendant, or his trial counsel. In the absence of any evidence that trial counsel knew or was on notice of the defendant's mental health issues, or that trial counsel failed to take adequate steps to investigate a mental health related defense, the defendant has failed to make any showing that trial counsel's performance fell below that of an ordinary fallible lawyer. See Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015). Nor is there any showing that the strategic decision to plead to second degree murder, rather than risk going to trial on charges of murder in the first degree, was manifestly unreasonable when made. See id. at 674.
Orders entered August 20, 2015, and November 30, 2015, denying motions for new trial and for reconsideration affirmed.
By the Court (Sullivan, Blake & Singh, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: November 15, 2017.