Opinion
16-P-456
05-05-2017
COMMONWEALTH v. Elisabete M. JUSKO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 14, 2013, the defendant, Elisabete M. Jusko, admitted to sufficient facts to support a charge of operating a motor vehicle while under the influence of intoxicating liquor (OUI). The case was continued without a finding until January 13, 2014, at which time the charge was dismissed.
In consideration of the defendant's agreement to admit to sufficient facts, an additional charge of negligent operation of a motor vehicle was dismissed and the defendant was found not responsible for a civil motor vehicle infraction.
Thereafter, on June 25, 2015, the defendant filed a motion under Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001), to withdraw her plea, claiming that her lawyer had provided her with ineffective assistance. In her affidavit submitted in support of the motion, the defendant avers that that she did not discover until after her plea that her attorney lacked criminal law experience and did not have an office. She further alleges that her attorney: (1) was unprepared for a loss-of-license hearing before the Registry of Motor Vehicles (RMV); (2) had asked her on a date; and (3) frequently discussed his romantic interest in one of the defendant's friends. The defendant claimed that she "was extremely scared" and "frightened" about "the possibility of having to go to jail," and that she accepted responsibility because she "believed [she] had exhausted all options to maintain [her] innocence."
The defendant also submitted an affidavit from appellate counsel, who states, "upon information and belief," that plea counsel was ineffective in attending the RMV hearing and because the defendant "was not provided with proper information" before admitting to sufficient facts.
Following a nonevidentiary hearing, the motion judge, who also had taken the defendant's plea, denied the defendant's motion in a well-reasoned memorandum of decision. Upon reviewing the affidavits and "[t]he written record," the judge found that the defendant "made an intelligent, knowing and voluntary waiver of her rights" and concluded that there was "a factual basis for the charge to which the defendant admitted." As the judge correctly observed, where, as here, a defendant seeks to withdraw a plea on the basis of ineffective assistance of counsel, she must demonstrate that "there has been serious incompetency, inefficiency, or inattention of counsel" which "has likely deprived [her] of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The judge concluded, primarily on the strength of the Commonwealth's case, that even if the defendant satisfied her burden on the first prong of the Saferian test, her claim of ineffective assistance fails on the second prong.
A transcript of the plea colloquy is unavailable.
In his memorandum, the judge summarized the evidence against the defendant as follows:
"The defendant drove her motor vehicle onto the opposite side of the road and came to rest in a small wooded area off the roadway. She was observed to have a strong odor of alcohol, extremely unsteady on her feet and her speech was slurred and difficult to understand. A police officer was required to assist the defendant while walking to prevent her from falling and possibly injuring herself. The defendant was unable to successfully complete any of the field sobriety tests and her performance was viewed as a failure."
After the judge issued his decision, the defendant filed a motion for reconsideration that was supported by additional affidavits from her and appellate counsel. Both affidavits make new factual allegations. For example, in her affidavit in support of the motion to reconsider, the defendant maintains that she "was never read [her] right to an independent medical examination." She avers, without providing any support, that: "I have/had a heart syndrome," and "I believed the Red Bull I drank that night caused my fainting." In his affidavit in support of the motion to reconsider, appellate counsel states that he reviewed the police report of the defendant's arrest and identified "two substantial grounds of defense that were not raised by prior counsel," namely, "the issues of the time of operation and the rights ... to an independent medical examination." The judge denied the motion to reconsider, and the defendant appeals from both orders.
However, the Commonwealth's appendix contains a "statutory rights and consent form" signed by the defendant, the first paragraph of which is entitled (in bold) "RIGHT TO A DOCTOR."
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Discussion. "A judge should allow a postsentence motion to withdraw a guilty plea only if the defendant comes forward with a credible reason for withdrawing the plea that outweighs the risk of prejudice to the Commonwealth." Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 581 (2001). We agree with the judge's determination that the facts in this case do not justify the withdrawal of the admission to sufficient facts. As a result, we conclude that the judge did not abuse his discretion in denying the initial motion to withdraw and the subsequent motion to reconsider. See Commonwealth v. Scott, 467 Mass. 336, 344 (2014).
"Where a claim of ineffective assistance is directed to counsel's representation incident to a guilty plea, the second prong of the Saferian test requires a defendant to show ‘that there is a reasonable probability that, but for counsel's errors, [s]he would not have pleaded guilty and would have insisted on going to trial.’ " Commonwealth v. Pike, 53 Mass. App. Ct. 757, 762 (2002), quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985). Here, the judge was not required to credit the defendant's allegations that she would have rejected the plea and insisted on going to trial but for her attorney's alleged lack of preparation, which, she claims, resulted in poor advice. See Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015). The defendant herself states that she "was extremely scared" and "frightened" about "the possibility of having to go to jail." Given these sentiments, coupled with the fact that plea counsel negotiated a resolution of the charges which avoided incarceration altogether, the defendant's claim that she would have gone to trial but for plea counsel's alleged poor advice is not plausible. See Commonwealth v. Pike, supra at 763.
The judge was within his discretion to deny the defendant's motion without an evidentiary hearing. See Commonwealth v. Vaughn, supra at 404. He properly declined to reconsider his original ruling on the basis of facts newly alleged in support of the motion for reconsideration. See Commonwealth v. Gilday, 409 Mass. 45, 46 n.3 (1991) ; Mass.R.Crim.P. 30(c)(2).
Orders denying motions to withdraw admission to sufficient facts and for reconsideration affirmed.