Opinion
14-P-583
02-13-2015
COMMONWEALTH v. CRAIG HOOD.
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
The defendant pleaded guilty to two counts of second degree murder in June, 1995. He was sentenced to serve two consecutive life terms in State prison. The defendant filed a motion to withdraw his guilty pleas and for a new trial, asserting that his counsel was ineffective. The motion judge, who was also the plea judge, denied the motion without an evidentiary hearing and the defendant now appeals. We affirm.
The defendant also pleaded guilty to other charges arising from separate incidents. The defendant did not move to withdraw those guilty pleas.
The motion on appeal before this court is the third such motion this defendant has made since he pleaded guilty. The defendant was allowed to withdraw his first motion without prejudice in August, 1996. The defendant filed a second motion in March, 2001, which was denied in January, 2002; this court affirmed the denial of that motion in Commonwealth v. Hood, 56 Mass. App. Ct. 1106 (2002). The motion on appeal here was filed in December, 2009, and denied in June, 2012.
Background. The defendant confessed to the murders in this case after being arrested on several outstanding default warrants, unrelated to the murders, from the Brockton District Court and an arrest warrant for an uncharged shooting of a male victim in Boston. The defendant was represented by counsel in the cases in Brockton District Court. At the time of his arrest, the police officers decided not to question him regarding any of the incidents. The next day while still in custody, the defendant requested to speak with the officers, and they agreed. Before questioning began, the defendant waived his Miranda rights, and thereafter he confessed to the two murders at issue in this appeal. The defendant was then charged with the two murders and, while represented by counsel, pleaded guilty.
Discussion. A motion to withdraw guilty pleas is treated as a motion for a new trial. Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). Commonwealth v. Furr, 454 Mass. 101, 106 (2009). When the motion is based on a constitutional claim, as it is here, we review the decision de novo. Commonwealth v. Gaston, 86 Mass. App. Ct. 568, 571 (2014), citing Commonwealth v. Salvati, 420 Mass. 499, 500 (1995). To vacate a guilty plea on ineffective assistance grounds, the defendant must show that the behavior of counsel fell "measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Clarke, 460 Mass. 30, 45 (2011), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant must also show prejudice, which in the context of a guilty plea requires that the defendant demonstrate that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty." Clarke, supra at 47, quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985).
The defendant asserts that his trial counsel was ineffective for allowing him to plead guilty without first arguing his motion to suppress the confession. The defendant claims that his motion would have been successful because the police officers violated his Sixth Amendment right to counsel under the United States Constitution. As the Commonwealth asserts in its brief at pages fifteen through twenty-one, the defendant's right to counsel was not violated because at the time of his confession he was not charged with any crime regarding the murders and therefore was not entitled to counsel. See McNeil v. Wisconsin, 501 U.S. 171, 175-176 (1991); Commonwealth v. Gaynor 443 Mass. 245, 257 (2005). Moreover, prior to his confession, the defendant himself initiated the interview with the officers and waived his Miranda rights. As such, the defendant's motion to suppress had very little, if any, likelihood of success on the merits and therefore this claim of ineffective assistance of counsel fails. See Commonwealth v. Comita, 441 Mass. 86, 91 (2004), and cases cited. The defendant's motion for a new trial on this ground was properly denied.
We note that this claim could have been dismissed as waived under Mass.R.Crim.P. 30(c)(2), but because the judge chose, in her discretion, to address the merits of the claim, we will review it on appeal.
The defendant also contends that his trial counsel was ineffective for failing properly to explain the sentence structure of his pleas. The defendant pleaded guilty to two counts of second degree murder, to be served consecutively, with the defendant becoming eligible for parole after serving fifteen years on each count. The defendant contends that his counsel did not properly explain that he was required to serve at least thirty years before becoming eligible for parole. The defendant waived this argument when he failed to raise it in his previous motion to withdraw guilty pleas and for a new trial. We agree that the argument reasonably could have been raised in his previous motion as an alternate ground to challenge the voluntariness of his pleas. See Mass.R.Crim.P. 30(c)(2).
Were we to consider this claim, it would not avail the defendant. The plea colloquy clearly demonstrates that while the defendant was initially confused about the minimum length of his sentence, the judge explained the sentence structure at least twice and confirmed that the defendant understood the minimum amount of time he would serve in prison before becoming eligible for parole. In fact, the issue whether the defendant understood the length of his sentence was used by the defendant as support for other arguments he advanced in his previous motion, although not directly or independently raised as a ground for challenging the voluntariness of his pleas.
The motion judge properly denied the defendant's motion to withdraw his guilty pleas.
Order entered June 19, 2012, denying motion to withdraw guilty pleas and for new trial affirmed.
By the Court (Grainger, Brown & Milkey, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 13, 2015.