Opinion
20-P-336
01-20-2022
COMMONWEALTH v. Timothy J. MORSE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a January 8, 2018 order denying the defendant's motion for a new trial. On appeal, the defendant argues that the motion judge abused his discretion in not recusing himself, in rejecting the defendant's numerous claims in support of the motion, and in making various evidentiary rulings. We affirm.
Background. In 1998, in the Clinton Division of the District Court Department, the defendant entered guilty pleas to related charges, under three separate docket numbers, of indecent assault and battery on a child under the age of fourteen (IAB); assault and battery; and violation of a protective order. Charges of rape and abuse of a child, unnatural acts with a child, dissemination of obscene material to a minor, intimidation of a witness, and two counts of threatening to commit a crime were dismissed at the Commonwealth's request. Pursuant to a plea agreement, he was sentenced on the IAB conviction to two and one-half years in a house of correction, with six months to serve, the balance suspended for two years. On the other two charges to which he pleaded guilty, the defendant received one-year probationary terms, to run concurrently with each other and with his sentence on the IAB conviction.
The defendant later violated his probation, which was revoked, leading to another sentence of two and one-half years in a house of correction. On appeal, the revocation order was affirmed. See Commonwealth v. Morse, 50 Mass. App. Ct. 582 (2000).
In 1999, the defendant, acting pro se, filed a motion to withdraw his guilty pleas; the motion was never acted on. In 2016, now represented by counsel, the defendant amended his motion to add claims and evidentiary support. Among other things, the motion asserted that plea counsel coerced the defendant to accept the plea agreement by informing him, incorrectly and for improper reasons, that he might face a ten-year prison sentence if the case were indicted and tried to guilty verdicts in Superior Court. A motion judge, who was not the plea judge, held a hearing in 2017 that included extensive legal argument and some testimony by the defendant, and denied the motion in 2018. The defendant appealed.
The motion was docketed in only one of the defendant's three cases. Each docket reflects the defendant's 2001 filing of a motion to revise and revoke and a judge's denial of that motion, but none of the dockets reflects further activity by the defendant, the Commonwealth, or the court on the new trial motion, until 2016.
We allow the defendant's motion to enlarge by twenty-seven days the time for filing his notice of appeal.
Discussion. 1. Recusal. The defendant argues that the judge should have recused himself after the defendant objected to the judge's hearing of the motion. "The matter of recusal is generally left to the discretion of the [motion] judge ... and an abuse of that discretion must be shown to reverse a decision not to allow recusal" (citation omitted). Commonwealth v. Daye, 435 Mass. 463, 469 (2001). Assuming arguendo that the defendant even sought recusal, we see no abuse of discretion in the judge's decision not to do so.
No recusal motion was docketed or appears in the record appendix.
At the outset of the motion hearing, the judge stated that he was aware of the defendant's "concerns about the desire to have an out of county judge," but that the judge did not "feel [he had] a conflict." The judge added that he had discussed the matter with the court's First Justice and said, "I don't have a problem. I said it may be an issue raised by you on appeal. But we deal with cases every day here involving Worcester lawyers, people we know. And it's my position I have no concern that I can't be impartial in this case."
The defendant's cases had been prosecuted by the Worcester County district attorney's office, and plea counsel's office was in Worcester. The Commonwealth states in its brief that plea counsel was a former assistant district attorney in Worcester County.
When asked to recuse himself, "[a] judge must ‘consult first his own emotions and conscience’ to determine whether he possesses the capacity to rule fairly" (citation omitted). Daye, 435 Mass. at 469. "Then, a judge must also conduct an objective appraisal of whether ... his impartiality might reasonably be questioned" (quotations and citation omitted). Id. Here, the judge's remarks reflect that he undertook this analysis. First, he consulted his own emotions and conscience and determined that he "[did not] have a problem" and had "no concern" that he could not be impartial. Second, after discussing the matter with the First Justice, he concluded that it was common for judges in Worcester County to deal with "Worcester lawyers, people we know," and that this was an insufficient reason for the motion to be heard by a judge sitting in another county. Although the judge's discussion of the issue was abbreviated, the defendant has shown no abuse of discretion in the judge's analysis.
On appeal, the defendant argues that the judge should have recused himself because he served as an assistant district attorney (ADA) in Worcester County at the time of the defendant's 1998 guilty pleas. The record contains no indication that the defendant raised this issue to the judge. Even if the defendant had done so, however, such service alone did not require recusal. The Massachusetts Code of Judicial Conduct requires disqualification where, among other things, the judge "served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy." S.J.C. Rule 3:09, Canon 2, Rule 2.11(A)(5)(b) (2016). The defendant offers no evidence that the judge, while an ADA, did either of those things. We reserve for later discussion the defendant's claim that the judge improperly relied on factual information learned in his capacity as an ADA.
The defendant cites a 2012 newspaper article indicating that the judge had been an ADA in Worcester County since 1997 and that, as of late 2012, was the district court supervisor. This falls far short of establishing any personal and substantial participation in the defendant's case.
2. Motion to withdraw guilty plea. We turn to the merits of the defendant's motion. A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000). Given the "strong policy of finality," Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012), a judge should only grant a motion to withdraw a plea if "the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth" (footnote omitted), Commonwealth v. DeMarco, 387 Mass. 481, 486 (1982). We review a judge's decision denying such a motion "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We address the defendant's claims seriatim.
a. Conflict of interest. The defendant argued that plea counsel had either (1) an actual conflict of interest, which would entitle the defendant to relief without a showing of resulting prejudice; or (2) a potential conflict of interest, which would require a further showing of actual resulting prejudice in order to warrant relief. See Commonwealth v. Dahl, 430 Mass. 813, 817 (2000), quoting Commonwealth v. Fogarty, 419 Mass. 456, 459 (1995) (applying art. 12 of Massachusetts Declaration of Rights). The claimed conflict arose in connection with the defendant's allegedly coerced assignment to plea counsel of $10,000 in bail money in order to pay counsel's fee. This allegedly gave counsel an incentive to coerce the defendant to plead guilty early in the case, so that counsel could retain the fee without performing significant work.
The judge explicitly declined to credit the defendant's claim that plea counsel obtained the assignment improperly, and the judge implicitly rejected the claim that $10,000 would have been an excessive fee for a case that, if not resolved by plea in District Court, was foreseeably headed for indictment in Superior Court. The judge found the defendant's claim, that plea counsel coerced a plea in order to obtain an inflated fee, to be "unsubstantiated by credible facts." The $10,000 was later returned in response to a demand by a friend of the defendant. On appeal, the defendant has not shown that the judge's findings are clearly erroneous or that the judge made any legal error in rejecting the conflict of interest claims.
b. Coerced pleas. The defendant's affidavit alleged that plea counsel coerced his pleas "by threatening [him] with a ten year term if [he] didn't plead guilty." As the judge observed, this presumably referred to the possibility that without a District Court resolution, the defendant could have been indicted and then convicted in Superior Court. At the motion hearing, current defense counsel argued that the warning of a possible ten-year sentence "was coercive; it wasn't really a statement of fact."
The prosecutor noted, correctly, that child rape carried a potential life sentence. See G. L. c. 265, § 23. The prosecutor represented that, under the sentencing guidelines, if child rape were the only offense, "the bare minimum would [have] be[een] [forty] to [sixty] months." However, the sentencing judge would have also "consider[ed] aggravating factors," such as the age difference between the defendant and the five year old victim, the defendant's abuse of his position of trust as the victim's mother's boyfriend, and whether it was a repeated offense, as the victim had told police. Such factors would have pushed the guidelines sentence "beyond [sixty] months." Moreover, rape of a child was only one of nine separate charges against the defendant.
Current defense counsel nevertheless argued that "there's nothing about this case ... that brings it outside whatever the guidelines are, ... it's [forty] to [sixty]; you know, it's a little over three to five years.... [T]hat's what [this case is] worth." Counsel did not, however, take the judge up on his invitation to submit a posthearing affidavit explaining counsel's own guidelines calculations. The judge then found that plea counsel's advice about a potential Superior Court sentence was not unreasonable. On appeal, the defendant has shown no clear error in that finding. Moreover, it is undisputed that the defendant signed the plea tender ("green sheet") reciting the rights he was voluntarily giving up by pleading guilty, and during the plea colloquy he did not say anything to indicate that he was being pressured. The judge was not required to credit the defendant's testimony that his pleas were coerced.
The judge invited counsel to submit additional evidence on "what the range might have been ... under the guidelines for a potential sentence if [the defendant] was convicted on everything or a couple of offenses." Although it was the defendant's burden to show that plea counsel's advice was deficient, the defendant's posthearing submission failed to address the guidelines issue. Thus, we reject the defendant's challenge to the judge's finding that counsel "was invited ... to submit evidence of what the Superior Court guidelines would have set for a sentencing range in 1998, [but] he did not do so."
c. Ineffective assistance of counsel. We dispose summarily of the claim that plea counsel was ineffective in failing to investigate the defendant's case before advising the defendant to plead guilty. Nowhere in the defendant's appellate brief does he argue, with appropriate record citations, that plea counsel's alleged failure to investigate fell "measurably below that which might be expected from an ordinary fallible lawyer" and "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant's vague and scattered assertions on these issues do not constitute acceptable appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). See also Maroney v. Planning Bd. of Haverhill, 97 Mass. App. Ct. 678, 683 n.8 (2020).
In his appellate argument on recusal, the defendant inexplicably includes a recitation of what information he believes an appropriate investigation would have revealed. That recitation fails to establish that the information would have been admissible at trial, or in some instances fails to establish that admissible information would have furnished a substantial ground of defense.
d. Newly discovered evidence. The defendant's motion asserted that newly discovered evidence entitled him to withdraw his guilty pleas. The argument is unavailing. "A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Grace, 397 Mass. at 305. The defendant made no attempt, however, to meet his burden of proving that the evidence at issue was "unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial," or, here, at the time of the guilty pleas. Id. at 306. Indeed, the defendant's own affidavit asserted that this evidence came from "witnesses who were available to [plea counsel]."
We thus need not and do not address "whether a voluntary guilty plea constitutes a waiver of the right to seek a new trial on the grounds of ... newly discovered evidence." Commonwealth v. Scott, 467 Mass. 336, 361 (2014).
e. Other arguments. Contrary to the defendant's conclusory assertions, the claimed newly discovered evidence neither demonstrated his actual innocence nor "establish[ed] a prima facie case for relief," so as to warrant the judge, in his discretion, to permit postconviction discovery. Mass. R. Crim. P. 30 (c) (4), as appearing in 435 Mass. 1501 (2001).
3. Evidentiary rulings. The defendant asserts that the judge erred in making various "evidentiary rulings." We see no merit in any of these claims. First, the defendant asserts that the judge "improperly limited the testimony of the defendant and then made clearly erroneous findings about his testimony." But the defendant cites no particular limits placed on his testimony and no particular resulting findings that he claims are clearly erroneous.
We quote here and infra from what appeared as upper case argument headings in the defendant's brief.
Second, the defendant asserts that "subsequent acts by [plea counsel] ... are admissible in that the facts demonstrate his actions vis-à-vis the plea were intentional." But the defendant cites no ruling by the judge that excluded any evidence of plea counsel's postplea bad acts. Rather, the judge's decision considered those acts but concluded that they did not alter his view of counsel's conduct in the defendant's case.
Third, the defendant asserts that his "complaint to the Board of Bar Overseers demonstrates that the actions of [plea counsel] were unethical." But the defendant does not identify any evidentiary ruling relevant to this issue, let alone explain why any such ruling was erroneous. The defendant then claims that the judge's view of a letter written by plea counsel to the defendant, concerning counsel's ethical obligations, was clearly erroneous. But nothing in the judge's ruling even addressed that letter, let alone made a finding based upon it.
Fourth, the defendant asserts that "the actions of [plea counsel] were incompetent in that they violated numerous Committee for Public Counsel rules." Again, however, the defendant does not identify any evidentiary ruling relevant to this issue, let alone explain why any such ruling was erroneous. To the extent that the defendant challenges the judge's use of the term "mandate" to characterize a Committee for Public Counsel Services performance standard that is phrased in discretionary terms, the characterization does not materially undermine the judge's conclusion that the defendant failed to show plea counsel was ineffective.
4. Reliance on extrajudicial observations. The defendant argues that, during the hearing and in his decision on the motion, the judge improperly relied on knowledge gained in his previous work as an ADA about the workings of the district attorney's office and the practices of particular prosecutors and judges at the time the defendant entered his guilty pleas. The hearing transcript and the decision on the motion indicate that the judge did rely on such knowledge. This was error. "It is ... plainly accepted that the judge is not to use from the bench, under the guise of judicial knowledge, that which he knows only as an individual observer outside of court." Duarte, petitioner, 331 Mass. 747, 749 (1954), quoting Wigmore on Evidence § 2569 (3d ed. 1940). See Commonwealth v. Bruno-O'Leary, 94 Mass. App. Ct. 44, 50 n.9 (2018). Among the reasons is that the parties are unable to cross-examine the judge, as they could an ordinary witness, to test the accuracy of his perception and memory.
We reject, however, the defendant's claim that the judge's comments reflected any bias in favor of the district attorney's office.
The defendant cites no authority indicating that the judge's knowledge required him to recuse himself, but he was required to put his extrajudicial knowledge out of his mind so as to decide any factual issues based solely on the evidence before him. If he were unable to do so, recusal might have been required, but we need not reach that issue here.
Nevertheless, the defendant has not shown that the reliance on extrajudicial knowledge entitles him to a remand or other relief in this case. The principal findings to which such knowledge related were that, if the defendant did not accept the District Court plea agreement involving only six months of committed time, he risked indictment and conviction in Superior Court and a substantially more severe sentence. We have set to one side the judge's statements based on extrajudicial knowledge and, after reviewing the principal findings based solely on the affidavits and hearing testimony, and after considering the arguments of counsel, we cannot say that those findings are clearly erroneous. Indeed, it is difficult to disagree with the judge's statement that "[a]ny capable lawyer would have similarly presented the same recommendation to the defendant at the time and any defendant would have been hard pressed [not] to consider it and possibly take it."
Order entered January 8, 2018, denying motion for new trial affirmed.