Opinion
No. 15–P–64.
06-15-2016
COMMONWEALTH v. Daniel JEUDIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order of the Superior Court denying his motion to withdraw his plea of guilty, based on a claim of ineffective assistance of counsel. He argues that his plea attorney was operating under a conflict of interest during the time he represented him, and the attorney's advice to the defendant to tender a guilty plea, rather than proceed to trial, was untrustworthy. We affirm.
On July 25, 2005, the defendant pleaded guilty to five counts of rape of a child. On July 20, 2006, the defendant's motion for a new trial and to vacate his guilty plea, on grounds of ineffective assistance of counsel, was denied by the same judge who had heard the plea. The judge explained his findings and reasoning in a thorough and detailed twenty-page memorandum. Although the defendant appealed that decision, the appeal, which entered on August 11, 2010, was dismissed in this court for lack of prosecution.
On May 29, 2014, the defendant again moved to withdraw his plea and proceed to trial, using essentially the same arguments as in his first, rejected motion. On January 2, 2015, a different judge denied the motion, without a hearing, based on the defendant's failure “to demonstrate [that his attorney's] criminal and unethical conduct constituted an actual conflict of interest.” The judge stated that “nothing the defendant now presents materially affects [the previous judge's] analysis of the various bases for defendant's claim of ineffective assistance” and “given the length of time that has elapsed and defendant's prior opportunities to appeal, there is a strong presumption of finality at play here.” In the judge's view, it could not be determined “on this record that had counsel performed as defendant now wishes he had, that defendant would have done anything differently than he did in pleading to these charges for the disposition he received.”
“A motion for new trial is the proper vehicle through which to request that a guilty plea be vacated.” Commonwealth v. Cano, 87 Mass.App.Ct. 238, 240 (2015). See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). When the motion is based on a claim of ineffective assistance, the defendant must demonstrate that counsel's behavior fell “below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ “ Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96–97 (1974). “We review the judge's decision ‘to determine whether there has been a significant error of law or other abuse of discretion.’ “ Cano, supra, quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
The defendant makes essentially the same argument of ineffective assistance as that in his first motion; however, here, he asks that the evidence now presented be considered “newly discovered” because the disciplinary proceedings, as well as the first criminal indictments, against his plea attorney occurred sometime after that first motion was denied in July, 2006. This argument is without merit. First, disciplinary information regarding the defendant's plea attorney was publicly available at least in November, 2007. The appeal of the order denying the defendant's first motion was not entered in this court until August 11, 2010, allowing the defendant nearly three years to pursue his conflict of interest theory; as noted, the defendant failed to pursue that appeal. Second, the defendant has presented only his self-serving affidavit in support of his motion, which fails not only to demonstrate that the new evidence is material and credible, but also falls short in sufficiently supporting the defendant's position that counsel was ineffective. See Commonwealth v. Shuman, 445 Mass. 268, 272 (2005).
Disciplinary proceedings against the defendant's plea attorney began in 2007; the defendant's plea attorney pleaded guilty to 135 felony counts in September, 2008, and was disbarred on October 28, 2008.
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In addition, we agree with the motion judge that the defendant cannot now relitigate an ineffective assistance claim previously found lacking, and made final upon the dismissal of the defendant's appeal. Based on the scant evidence presented in this record to support the defendant's assertion, we cannot say that the conduct of the defendant's plea attorney fell “below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Lavoie, 464 Mass. 83, 89 (2013), quoting from Commonwealth v. Saferian, supra at 96. We discern no error, and certainly no abuse of discretion in the denial of the defendant's motion. See Cano, 87 Mass.App.Ct. at 240.
Order entered January 2, 2015, affirmed.