Opinion
10-P-1296
11-22-2011
COMMONWEALTH v. GELNESIDAR 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
Gelnesidar Martinez (the defendant) appeals the denial of her motion for a new trial in which she alleged that her plea of guilty, entered four years earlier, was invalid due to the effects of battered woman syndrome (BWS). She raises two issues on appeal. First, she claims that her guilty plea was not made intelligently because she did not understand that she had a valid defense at trial, namely that, due to her BWS, her boyfriend Ramiro Martinez (Ramiro) coerced her into distributing cocaine. Second, she claims that her guilty plea was not voluntary because Ramiro intimidated her into pleading guilty. We affirm.
Background. In May of 2003, the defendant was charged with the distribution of cocaine in violation of G. L. c. 94C, § 32A(a), a felony punishable by up to ten years in State prison, and a school zone violation under G. L. c. 94C, § 32J, which upon conviction requires, at a minimum, an additional two-year sentence to a house of correction from and after any sentence of incarceration imposed on the distribution charge. On June 15, 2005, an agreement was reached between the Commonwealth and the defendant that allowed her to plead guilty to the distributing charge and to obtain the dismissal of the school zone violation. The agreed upon sentence recommendation, which the judge adopted, was a suspended two-year house of correction sentence and a term of probation for two years. In March of 2009, almost two years after the defendant was discharged from her probation and after she was informed that she was to be deported, she filed the motion for a new trial that is the subject of this appeal. After an evidentiary hearing on June 30, 2009, the motion judge (who was also the plea judge) made findings and rulings and denied the defendant's motion.
In keeping with the nature of a decision pursuant to our rule 1:28, we include only an abbreviated statement of the facts.
Discussion. 1. Intelligent and voluntary plea. A guilty plea generally 'may be withdrawn or nullified if it does not appear affirmatively that the defendant entered the plea freely and voluntarily.' Commonwealth v. Lopez, 426 Mass. 657, 660 (1998). 'A defendant's plea is intelligent when made with understanding of the nature of the charges (understanding of the law in relation to the facts) and the consequences of [her] plea (the legal consequences and constitutional rights [she] forgoes by pleading guilty rather than proceeding to trial); it is voluntary when free from coercion, duress, or improper inducements.' Commonwealth v. Estrada, 69 Mass. App. Ct. 514, 519 (2007), quoting from Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 638 (2007).
There is no claim by the defendant that the judge's plea colloquy was defective or incomplete. There is ample evidence in the record of the motion for a new trial hearing to support the judge's finding that at the time the defendant pleaded guilty she made a free and voluntary choice. First, the terms of the guilty plea were highly favorable to the defendant and the evidence against her was quite strong. The defendant was observed by the police selling cocaine to an informant in a school zone. She faced up to ten years in State prison on the distribution charge and a minimum mandatory sentence of two years on the school zone charge. Indeed, in response to a question from the judge at the June 30 hearing, the defendant admitted that the lack of jail time was part of the reason she had pleaded guilty. This contrasts starkly with cases in which a defendant alleges she made a decision that was actively harmful to her case in response to threats from a codefendant. See, e.g., Commonwealth v. Adkinson, 80 Mass. App. Ct. 570 (2011).
The defendant did not offer an affidavit from the attorney who represented her when she pleaded guilty in 2005.
In addition, as the judge found, the medical evidence does not support the defendant's claim that her guilty plea was not knowing and voluntary. The judge acknowledged the validity of the evidence that she was suffering from BWS contemporaneously with her motion for a new trial, but the judge was not persuaded that the defendant was suffering from BWS at the time of the guilty pleas. Furthermore, there was evidence that the defendant exerted some independence from Ramiro prior to her guilty plea. In particular, she denied him the ability to formally live with her and she sometimes denied him the right to use her car.
The judge stated: 'I guess, I look at this most recent admission at the Holy Family Hospital, which talks about different symptoms, different illnesses that the defendant may have, which again, if you're looking at this particular timeframe is different from what occurred back when the plea took place.' The judge also noted that the defendant never went to the police regarding Romero's alleged actions and that her delayed resort to medical personnel was 'all self-reported.'
In addition, the defendant specifically indicated to her evaluating psychologist that the plea judge at some point had asked her if she felt fearful or threatened, which also furthers the inference that she knew BWS was a defense.
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As the motion judge was also the judge before whom the defendant had pleaded guilty, he was in the best position to assess her credibility and to evaluate and weigh the evidence. His determination that notwithstanding the evidence of BWS, the defendant's 2005 plea of guilty was made intelligently and voluntarily is supported by the record and entitled to deference by this court. See Commonwealth v. Sharpe, 454 Mass. 135, 147 (2009). It was entirely within his discretion to disbelieve the testimony that the defendant was suffering from BWS at the time of her plea of guilty in 2005. See Commonwealth v. Pike, 431 Mass. 212, 224-225 (2000).
2. Ineffective assistance of counsel. The defendant also argues that her trial counsel was ineffective for failing to discover the BWS claim. The defendant did not inform the attorney representing her at the time of her plea of Ramiro's threats or violence. Furthermore, the motion judge was warranted in finding that the defendant's medical records introduced in evidence at the hearing on the defendant's motion for a new trial (most of which postdated the plea hearing) would not have put her plea attorney on notice that she was suffering from BWS in 2005. Applying the familiar two-prong test of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), the defendant's attorney was not ineffective for failing to pursue a defense that he had no reason to believe existed. See Commonwealth v. Colomna, 33 Mass. App. Ct. 914, 915 (1992).
Order denying motion for new trial affirmed.
By the Court (Grainger, Fecteau & Agnes, JJ.),