Opinion
10-P-1521
10-25-2011
COMMONWEALTH v. REYNALDO MARTINEZ.
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
The defendant appeals from the denial of his second motion for a new trial and the denial of a motion for funds for a psychiatric expert in Superior Court. The defendant contends, in particular, that the judge erred in 1) denying the defendant's motion to withdraw his guilty plea, 2) failing to conduct a hearing on his competency sua sponte at the time of the plea, 3) finding his plea to be intelligent and voluntary, and 4) abusing his discretion to deny the defendant's motion for additional funds. We affirm.
On February 9, 2001, the defendant submitted his first motion to withdraw his guilty plea, supported by affidavit, which the judge denied without a hearing and from which the defendant did not appeal. While the docket discloses a motion for reconsideration and for a free transcript that was allowed, it is unclear whether reconsideration was allowed as to the prior motion for a free transcript that had been denied without prejudice, or as to the substantive motion. Since the judge acted on the merits of the second motion, we likewise address the merits of the motion rather than the possible waiver of the issues under Mass.R.Crim.P. 30(c), as appearing in 435 Mass. 1501 (2001), because of the similarity of the same issues in the first motion to those argued here.
The judge who conducted the plea colloquy in which the defendant changed his plea to guilty ruled on the defendant's motions for a new trial and for additional funds without an evidentiary hearing.
The defendant asserts that he is entitled to a new trial because plea counsel was ineffective in failing to fully investigate and inform the judge about his purported history of mental illness and in failing to request a competency examination. The defendant's motion to withdraw his guilty plea was properly denied.
As the judge properly denied the defendant's motion for a new trial, the defendant's contention that the judge erred in denying his motion for funds to hire an expert fails, as the judge concluded that the defendant failed to 'present a meritorious ground for a new trial.' Commonwealth v. Mitchell, 438 Mass. 535, 555 (2003). Additionally, the defendant neglects to assert any authority to support his claimed right to postconviction discovery. See Commonwealth v. Carter, 429 Mass. 266, 269 (1999), and G. L. c. 261, § 27C.
A postconviction motion for a new trial 'will not be reversed for abuse of discretion unless it is manifestly unjust, or unless the plea colloquy was infected with prejudicial constitutional error (citation omitted).' Commonwealth v. Correa, 43 Mass. App. Ct. 714, 716 (1997). Where, as here, the motion judge is also the trial judge, reversal for abuse of discretion is rare. See Commonwealth v. Moore, 408 Mass. 117, 125 (1990).
To succeed on a claim of ineffective assistance of counsel, the defendant must show 'serious incompetency, inefficiency, or inattention of counsel . . . falling measurably below that which might be expected from an ordinary fallible lawyer.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Here, such claim is without merit. Plea counsel fully disclosed his knowledge of the defendant's mental condition as he awaited trial in confinement. Based on plea counsel's accurate knowledge of the defendant's mental health, there was no reason for plea counsel to request a competency exam, as the defendant suggests. In fact, a review of the sealed record reaffirms the validity of plea counsel's statements portraying the defendant as affected by great stress and anxiety, but not ultimately suffering from psychosis. The defendant has failed to demonstrate that, at the time he changed his plea to guilty, there existed a 'substantial question of possible doubt' as to the defendant's competence that warranted a court-ordered hearing. Commonwealth v. Simpson, 428 Mass. 646, 652 (1999), quoting from Commonwealth v. Hill, 375 Mass. 50, 62 (1978) (finding a question of competency based on defendant's incriminatory and erratic trial conduct). Since there was no apparent substantial question of possible doubt as to the defendant's competency, it was not ineffective of counsel to have failed to request an examination for competency.
The records from the forensic mental health unit consistently reflect the defendant's growing anxiety about his upcoming trial, but otherwise a stable state of mind.
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A determination of competency does not turn on the presence or absence of a psychiatric diagnosis, but rather, the defendant's 'present ability to consult his lawyer with a reasonable degree of rational understanding . . . .' Commonwealth v. Russin, 420 Mass. 309, 317 (1995), quoting from Dusky v. United States, 362 U.S. 402, 402 (1960). The judge had personally recalled having observed this defendant during the plea colloquy at the time and later upon reviewing the transcript, failed to find any indication that the defendant's competency was at issue. The oral and written records suggest the defendant was fully alert and rational at the time he changed his plea to guilty. Thus, the defendant failed to present a 'credible reason' to grant a new trial, one that 'outweighs the risk of prejudice to the Commonwealth.' Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992), quoting from Commonwealth v. Hanson, 27 Mass. App. Ct. 840, 845 (1989).
Finally, the defendant's claim that he did not voluntarily and intelligently change his plea is unsupported by the record. 'To assess the intelligence and voluntariness of a defendant's plea, we necessarily rely on the defendant's sworn responses to the judge's informed questions made in the solemnity of a formal plea proceeding.' Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 638 (2007). Such statements have an 'undeniable bearing and heft in resolving a later claim to the contrary.' Id. at 639. The defendant's allegations on appeal are in direct conflict with his sworn statements given during an extensive plea colloquy. The judge acted within his discretion to credit the defendant's sworn testimony during his questioning of the defendant at the change of plea proceeding over the defendant's subsequent, self-serving affidavit filed almost ten years following his change of plea. Moreover, the judge inquired specifically as to the defendant's ability to appreciate the consequences of his plea, and it is clear from the record that the defendant had complete understanding of the charges at the time the plea was changed. See Commonwealth v. Quinones, 414 Mass. 423, 431 (1993).
Accordingly, the defendant has failed to show that the judge abused his discretion or committed error of law in denying his motions for a new trial and for funds for a psychiatric expert.
Judgment affirmed.
Order denying motion for new trial affirmed.
Order denying motion for funds for psychiatric expert affirmed.
By the Court (Kantrowitz, Graham & Fecteau, JJ.),