Opinion
11-P-449
03-07-2012
COMMONWEALTH v. CHRISTIAN LABONTE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 11, 1995, a delinquency complaint was issued against Christian Labonte for two counts of rape of a child by force and two counts of assault and battery by means of a dangerous weapon. On November 27, 1995, represented by an attorney and a guardian ad litem (GAL), the defendant pleaded delinquent to reduced charges of two counts of indecent assault and battery. Fifteen years later, on August 23, 2010, he filed a motion for a new trial in District Court seeking to withdraw his plea. The motion was denied, and he now appeals. Largely for the reasons set forth by the judge in his thorough decision, we affirm the denial of the new trial motion.
1 As described by the motion judge: 'The allegations arose out of an event on December 10, 1994 at the foster home where the defendant had been placed. It was alleged that the defendant had pulled another resident, a seven year old boy out of bed and ordered him to perform oral sex on the defendant. When the boy refused to comply, the defendant struck the boy with a metal pipe. He then forced the boy to perform fellatio and then pulled the boy's pants down and forcibly fellated him. Another resident, a young boy, witnessed the assault and attempted to flee the area. As that young boy ran, the defendant hit him with a metal pipe.'
Labonte was thirteen years old when he entered his delinquency plea. He is now an adult, and we refer to him as 'the defendant.' See Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 631 n.1 (2001).
We note that the defendant had filed a motion for new trial on May 21, 2007, raising issues similar to those in the second motion for new trial, which is the subject of this appeal. The first motion was denied by margin endorsement on November 30, 2007, and the defendant did not appeal. While the court retains the authority to rehear rejected claims in 'extraordinary cases,' the general rule is that the defendant may not relitigate his claims with another new trial motion, and he is not entitled to review of claims already raised and denied in his first new trial motion. Commonwealth v. Fogarty, 406 Mass. 103, 107 (1989). The Commonwealth has not pressed the point in this appeal or argued that we should not address the merits.
Discussion. 1. 'A postsentence motion to withdraw a plea is treated as a motion for a new trial.' Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000). Such a motion may be granted 'at any time if it appears that justice may not have been done.' Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The defendant claims that the denial of the motion to withdraw the plea was an abuse of discretion.
This case is complicated by the fact that there are no records of the plea hearing in 1995. In the fifteen years since the defendant's plea, the paper file, as well as any docket entries, have been destroyed or misplaced. The defendant claims that because there is no record of a plea colloquy, the Commonwealth cannot prove that the defendant's waiver of his constitutional rights was validly obtained. When a defendant has waited a lengthy amount of time before challenging a prior guilty plea, 'the absence of a record, and the inability effectively to reconstruct it, may be directly attributed to the defendant's delay and may be said to be the defendant's fault.' Commonwealth v. Lopez, 426 Mass. 657, 661 (1998). The destruction of the record of the plea colloquy and the corresponding docket sheets was permissible according to court rules, placing the fault of the lack of a record on the dilatoriness of the defendant.
Even in the absence of a record from the plea hearing, a defendant can present 'sufficient and reliable evidence to rebut a presumption that the prior conviction was valid.' Id. at 665. Here, the defendant presented evidence of low test scores as the sole evidence of his incompetence at the time of the plea. These scores alone are insufficient to establish that he was legally incompetent to enter a plea; a low score on a math or reading test does not necessarily mean that a defendant is incapable of making a knowing and voluntary waiver of rights. Furthermore, the defendant was represented by a GAL, had the counsel of an attorney, and received a favorable plea bargain. Finally, the defendant's GAL leading up to the plea colloquy opined in her affidavit (submitted during the new trial motion proceedings) that there was 'no question that [the defendant] made a knowing, intelligent, and voluntary waiver of his trial rights.' His proof lacking, there was no abuse of discretion in denying the defendant's motion.
When he was twelve years old, the Kaufman test of educational achievement showed the defendant was operating at an aggregate grade level of approximately 4.9.
For substantially the reasons stated in the Commonwealth's brief at pages 24 through 27, we reject the defendant's contention that the motion judge's findings of fact are not supported by the record.
2. The defendant argues that under the familiar test, he was denied the effective assistance of counsel where counsel failed to investigate the issue of his competence. Here, the defendant cannot prove the first prong of the Saferian test. The defendant's GAL leading up to the plea colloquy asserted that she knew the defendant well and never had any concerns regarding the defendant's competency at the time of his plea. In contrast, there is no evidence that any of the defendant's attorneys had reason to believe that the defendant was incompetent. Failing to further investigate the competence of the defendant did not constitute ineffective assistance of counsel.
The defendant must show that 'there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, [that] it has likely deprived the defendant of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Since the first prong is not met, we will not address the second prong of Saferian.
Moreover, in return for pleading guilty, the prosecutor reduced two of the charges and dropped two others altogether, resulting in only two years of probation. In addition to accepting a very favorable plea bargain, the defendant waited more than ten years to attempt to vacate his pleas. 'A defendant's dilatoriness in not directly challenging his plea will often suggest that, when the plea was made, the defendant was satisfied with his arrangement; had been counseled as to its particulars; and could be lawfully deemed to have accepted what were the unforeseeable, but possible, consequences.' Lopez, 426 Mass. at 663. The denial of the motion for a new trial is affirmed.
The judge described the defendant's counsel as 'amongst the best lawyers providing representation to the defendants in the juvenile court.'
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Order dated January 31, 2011, denying motion for new trial affirmed.
By the Court (Katzmann, Meade & Vuono, JJ.),