Opinion
16-P-10
02-21-2017
COMMONWEALTH v. Wendy D. MELLO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of her motion to vacate her admissions to sufficient facts and for a new trial on charges of operating a motor vehicle while under the influence of intoxicating liquor (OUI) and resisting arrest. She argues that her plea counsel was ineffective by failing to advise her that her driver's license would be subject to a three-year statutory suspension, which she characterizes as a collateral consequence of her admission to the OUI charge. We affirm.
As the analysis for withdrawing an admission to sufficient facts is essentially the same as that for withdrawing a guilty plea, we use the terms "admission" and "plea" interchangeably.
Background . We summarize the facts recited by the Commonwealth at the plea hearing, supplemented with undisputed facts from the record. On March 19, 2013, at approximately 2:30 in the morning, New Bedford police officers observed a vehicle, later determined to be driven by the defendant, crossing over the double yellow line multiple times. Upon stopping the vehicle and conversing with the defendant, the officers noticed an odor of alcohol and that the defendant had glossy eyes. When asked, the defendant stated that she had consumed two glasses of wine. The officers administered two field sobriety tests and, after the defendant failed both, placed her under arrest. The defendant then became very belligerent, and she twice refused to submit to a breathalyzer test.
Although the defendant's license was immediately suspended because of this incident, she operated her vehicle the next day. When police pulled her over and ordered her out of the vehicle, the defendant again became belligerent and refused to comply. The officers eventually had to pull her from the vehicle.
As a result of the March 19 incident, the Registry of Motor Vehicles (RMV) sent the defendant two letters stating that her license would be suspended because of her refusal to submit to a breathalyzer test. The first letter, dated the day of the incident, notified the defendant that her license would be immediately suspended for 180 days pursuant to G. L. c. 90, § 24(1)(f )(1). The second letter, dated the following day, clarified that the length of the suspension would be three years, also pursuant to G. L. c. 90, § 24(1)(f ) (1). Both letters gave the defendant notice of her right to request an administrative hearing within fifteen days to challenge the suspension. The record does not reflect, and the defendant does not claim, that she exercised that right.
The parties agree that the defendant was subject to the longer three-year suspension because she has a prior OUI conviction from 1995.
Over two months later, in June of 2013, the defendant admitted to sufficient facts to support convictions of OUI and resisting arrest. The judge conducted a thorough colloquy, during which she asked the defendant, "Do you understand that during [your probationary period] you're required to follow certain conditions, including ... that you ... suffer the statutory license loss?" The defendant answered affirmatively. The judge then accepted the defendant's pleas, concluding that they were knowing, intelligent, and voluntary, and continued the OUI charge without a finding until June 3, 2014, and the resisting arrest charge without a finding until December 3, 2013. The judge also ordered the defendant to complete a driver alcohol education program and imposed a forty-five day license suspension, both pursuant to G. L. c. 90, § 24D.
A third charge, for operating with a suspended license, was dismissed at the Commonwealth's request, and the defendant was found not responsible on two civil infractions.
Soon thereafter, the defendant obtained new counsel and, in August of 2013, filed a motion to vacate her pleas and for a new trial, claiming that her plea counsel was ineffective. The motion was accompanied by an affidavit from the defendant, in which she alleged, among other things, that plea counsel failed to advise her that "an admission to facts ... would result in a three-year suspension for failure to take the breathalyzer." After a hearing the same judge who heard the plea denied the motion. The judge found the evidence insufficient to show that "counsel failed to properly advise [the defendant] of her options in disposing of the case, or of her ability to take the case to trial, [or] of the possible risks and benefits of those courses." In making these findings, the judge declined to credit the assertions in the defendant's affidavit, noting that she did not present any evidence from plea counsel to corroborate her assertions.
Discussion . "A motion to vacate an admission to sufficient facts is treated as a motion for a new trial." Commonwealth v. Muniur M ., 467 Mass. 1010, 1011 (2014). We review a judge's denial of such a motion only to "determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Sylvester , 476 Mass. 1, 5 (2016), quoting from Commonwealth v. Lavrinenko , 473 Mass. 42, 47 (2015). Substantial deference is warranted where, as here, the judge passing on the motion was the same judge who took the plea. See Commonwealth v. Grant , 426 Mass. 667, 672 (1998).
We conclude for several reasons that the judge was within her discretion in denying the defendant's motion. First, the only evidence the defendant submitted to support the motion was her own affidavit, which the judge expressly did not credit. It was for the judge to determine "the weight and credibility to be accorded [the] affidavit[ ]." Commonwealth v. Furr , 454 Mass. 101, 106 (2009). See Grant , 426 Mass. at 673. Thus, although the defendant's affidavit asserts that plea counsel did not advise her about the three-year license suspension, the judge was entitled to reject that assertion as not credible, especially given the defendant's failure to submit any evidence from plea counsel himself. See Commonwealth v. Thurston , 53 Mass. App. Ct. 548, 553–554 (2002) (defendant's claim that he received inadequate legal representation was "conspicuously marred by [his] fail[ure] to include an affidavit from his original defense counsel or to explain the absence of such affidavit").
Second, even assuming plea counsel did not advise the defendant of the three-year suspension, that still would not support a claim that he was constitutionally ineffective. As a general matter, defense counsel is not required "to inform a defendant of collateral or contingent consequences of a plea." Commonwealth v. Roberts , 472 Mass. 355, 362 (2015). See Sylvester , 476 Mass. at 6-8 (counsel was not ineffective for failing to inform defendant that guilty plea could require him to register as sex offender). And in any event, here, the three-year suspension was not even a collateral consequence of the defendant's plea. The suspension, rather, was imposed by the RMV as a direct result of the defendant's failure to submit to a breathalyzer test on March 19, 2013, months before she tendered her plea. By statute, this suspension was mandatory, regardless of the disposition of the criminal charge. See G. L. c. 90, § 24(1)(f )(1), as amended by St. 2005, c. 122, § 9 ("If the person arrested refuses to submit to [a chemical] test or analysis ... no such test or analysis shall be made and [s]he shall have h[er] license or right to operate suspended ..."); Luk v. Commonwealth , 421 Mass. 415, 424–425 (1995).
We reject the defendant's argument that the United States Supreme Court's decision in Padilla v. Kentucky , 559 U.S. 356 (2010), changes the analysis. "[T]he only mandate stemming from the Padilla case is that deportation may not be treated as a collateral consequence outside the scope of the Sixth Amendment [to the United States Constitution]." Sylvester , 476 Mass. at 7.
Finally, as the judge implicitly found, the defendant did not prove that she was prejudiced by plea counsel's performance. To demonstrate prejudice in this context, the defendant had to establish "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. Clarke , 460 Mass. 30, 47 (2011), quoting from Hill v. Lockhart , 474 U.S. 52, 59 (1985). The judge could permissibly conclude that she failed to meet that burden. By admitting to the charges against her, the defendant received a favorable disposition that enabled her to avoid prison time; had she gone to trial, she faced a potential sentence of up to two and one-half years on the OUI charge alone. See G. L. c. 90, § 24(1)(a )(1). Although she now claims that her "main concern was the length of her license suspension," the suspension imposed by the RMV (which presumably by now has run its course) would not have been stayed pending trial because it operated independently of the criminal proceeding. See G. L. c. 90, § 24(1)(f )(1). Indeed, even had the defendant been found not guilty, her license would not have been automatically restored. She could have applied to the judge for restoration, but the suspension would have stood if the Commonwealth proved "by a fair preponderance of the evidence, that restoration ... would likely endanger the public safety." Ibid . Given the strength of the evidence against her, it is not reasonably probable that the defendant would have risked a guilty finding, with the possibility of a prison sentence, for the chance to petition for restoration of her license.
The defendant also contends that her postconviction counsel was ineffective because the motion for a new trial he prepared did not adequately present the claims the defendant now makes on appeal (through new appellate counsel). In advancing this argument, the defendant does not request a remand so that she can file a new motion; rather, she appears to be arguing that postconviction counsel's alleged ineffectiveness is itself a reason to vacate her pleas and grant her a new trial. We reject this contention, which the defendant fails to support with any authority. We agree with the Commonwealth that the performance of postconviction counsel is irrelevant to the underlying question whether the defendant is entitled to a new trial because her plea counsel was ineffective. Moreover, we have considered the latter question fully on its merits as argued by current appellate counsel and have not deemed any aspect of the issue waived due to any inadequate presentation below.
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Order denying motion to vacate admissions and for new trial affirmed.