Opinion
No. 12–P–1682.
2013-11-5
COMMONWEALTH v. Scott A. McNULTY.
By the Court (RUBIN, MILKEY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bench trial, the defendant was found guilty of operating without an ignition interlock in violation of G.L. 90, § 24S( a ), and not guilty of operating under the influence of alcohol in violation of G.L. 90, § 24(1)( a )(1) (third offense charged). On appeal, the defendant argues that his trial counsel was ineffective, that his trial counsel should have withdrawn from the case due to a conflict of interest, and that the trial judge should have recused himself from the case. For the reasons stated below, we affirm the judgment.
Discussion. 1. Ineffective assistance of counsel. The defendant raises a claim of ineffective assistance of counsel under several theories.
However, “the preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial.” Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). Otherwise, we are limited by a record “bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.” Commonwealth v. Peloquin, 437 Mass. 204, 210 n. 5 (2002). This case does not fall within the narrow exception to that rule, where the factual basis for the claim of ineffective assistance “appears indisputably on the trial record.” Commonwealth v. Zinser, 446 Mass. at 811. Also, in this case, the factual basis for the defendant's claims has not been assessed by the trial judge, who has the responsibility of making findings when the facts are in dispute. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). Finally, we do not have a record before us that contains the reasons for trial counsel's decisions. The issue, therefore, is not properly reviewable. 2. Conflict of interest on the part of trial counsel. The defendant argues that his trial counsel had a conflict because he had a discussion with the defendant's daughter about a separate legal matter involving the defendant. The defendant states that because of the conversation, trial counsel was not focused fully on the defendant's trial. Under art. 12 of the Massachusetts Declaration of Rights, “[a] defendant is entitled to the untrammeled and unimpaired assistance of counsel free from any conflict of interest.” Commonwealth v. Stote, 456 Mass. 213, 217 (2010), quoting from Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986). “It is the defendant's burden to present ‘demonstrative proof detailing the precise character of the alleged conflict of interest.’ “ Commonwealth v. Perkins, 450 Mass. 834, 852 (2008), quoting from Commonwealth v. Davis, 376 Mass. 777, 780–781 (1978). In this case, the defendant fails to show any conflict at all. There are no facts in the record as to the nature of the conversation between trial counsel and the defendant's daughter. “Mere speculation or conjecture is insufficient.” Ibid.
The defendant argues in his brief that trial counsel was ineffective when he withdrew his motion to sever the charges and failed to object to the introduction of registry of motor vehicles documents, and because he had never previously handled an ignition interlock device case. At oral argument, the defendant raised grounds for ineffective assistance of counsel not presented in his brief. Generally, we will not consider arguments not raised in a party's brief. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Budish v. Daniel, 417 Mass. 574, 577 n. 5 (1994). In any event, these issues are more appropriately raised in a motion for new trial. See Commonwealth v. Zinser, 446 Mass. 807, 810 (2006).
3. The judge's impartiality. There was evidence at trial that the defendant said, “[h]ey, I got to make a living,” when confronted by police about the absence of an ignition interlock in his vehicle. During the sentencing phase, the judge said, “[t]he first example's bad enough, that you again—it's the sense of entitlement. Rules don't apply to me, so I'm going to do whatever it takes to pursue my livelihood, even though that's in the face of a restriction.”
The defendant argues that the judge's remarks show that the judge was not impartial.
The defendant also points to the comments made by the judge concerning his jurisdiction over the case. Those comments were not directed at the defendant, nor were they a comment on the defendant's conduct. The judge was merely concerned with the “orderly management of the trial list,” a concern that “ought not to be belittled.” Beninati v. Beninati, 18 Mass.App.Ct. 529, 535 (1984).
In making sentencing decisions, judges have discretion to consider the defendant's character, behavior, background, and amenability to rehabilitation. See Commonwealth v. Coleman, 390 Mass. 797, 805 (1984); Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993). Here, the judge's comment did not indicate consideration of an improper factor in sentencing, and it did not represent an inclination to punish the defendant because he had lied or committed other offenses. Contrast Commonwealth v. Gresek, 390 Mass. 823, 830–831 (1984); Commonwealth v. Murray, 4 Mass.App.Ct. 493, 495 n. 3 (1976). While perhaps better left unsaid, the judge's comment was a record-based assessment of the defendant's character and not a prohibited “personal philosophical message.” Commonwealth v. Mills, 436 Mass. 387, 400 (2002). See Commonwealth v. Doucette, 81 Mass.App.Ct. 740, 742 (2012). The defendant has failed to establish his claim that the judge was not impartial.
Judgment affirmed.