Opinion
19-P-348
04-21-2020
COMMONWEALTH v. Enrique N. PEREZ-ACEVEDO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In late May, 2015, three complaints issued in Lawrence District Court charging the defendant with five counts of distributing heroin, in violation of G. L. c. 94C, § 32 (a ) ; trafficking heroin with a net weight of thirty-six grams or more and less than 100 grams, in violation of G. L. c. 94C, § 32E (c ) (2) ; possession of cocaine with intent to distribute in violation of G. L. c. 94C, § 32 (a ) ; and a drug offense in a school or park, in violation of G. L. c. 94C, § 32J. The defendant privately retained Attorney Socrates De La Cruz to represent him on these charges. On June 29, 2015, an Essex County grand jury indicted the defendant on the one trafficking and five distribution offenses. On September 22, 2015, Attorney De La Cruz withdrew as counsel when the defendant retained Attorney Philip Doherty, who entered his appearance that same day. On May 25, 2016, the defendant, represented by Attorney Doherty, pleaded guilty to a reduced charge of trafficking eighteen or more grams of heroin but less than thirty-six grams and to four counts of distribution. He was sentenced to three and one-half to four years in prison, with four years of probation from and after his prison term.
The defendant subsequently brought civil actions against both attorneys arising out of their representation of him in this matter. In a letter to the defendant dated May 18, 2018, counsel for De La Cruz, Paul F. Zerola, asserted among other things that "before you were indicted, [De La Cruz] spoke with the prosecutor, who agreed to keep the case in District Court and recommend a sentence of 18 months in the House of Correction in exchange for a guilty plea. You refused this plea offer, as was your right, and you proceeded to be arraigned in Superior Court." The defendant claims that this was the first he heard of this plea offer.
The defendant subsequently wrote to J. Gregory Batten, the attorney for his second attorney, Doherty, asking him whether De La Cruz had informed Attorney Doherty that he had negotiated an eighteen-month house of correction sentence. Batten responded, in a letter dated May 23, 2018, "the answer to your query is no. In addition, the only discussion we [meaning Doherty and the defendant] had regarding the charges were with the prosecutor post indictment (i.e., the only offer was the one made by the prosecutor and you ultimately accepted)."
The defendant, pro se, filed a postconviction motion for relief from unlawful restraint, which was denied. On the basis of the information described above, the defendant, now represented by counsel, brought the instant "Motion for Reconsideration of his Motion for Relief From Unlawful Restraint and Motion for Relief Pursuant to Mass. R. Crim. P. 30 (b)," and requested an evidentiary hearing. The defendant alleged in an affidavit that his first attorney had never told him of this plea offer and that the failure to inform him of such a favorable offer amounted to ineffective assistance of counsel.
Without a response from the Commonwealth, a judge of the Superior Court denied the motion in an eleven-page memorandum and decision. The judge denied an evidentiary hearing and denied relief on the ground that he "did not find [the defendant's] self-serving affidavit to be credible" because it would have been to the attorney's benefit in light of the structure of his fee to resolve the case before indictment. The judge concluded that there was "no reason to believe that ... trial counsel would not have conveyed such a favorable plea offer/resolution to his client." He noted that "any attorney would be enthused about such an outcome," and that his "professional standing amongst potential clients would have been enhanced by resolving the case so favorably." He concluded that "a hearing would add nothing to the record before the court. Trial counsel would repeat his full statement in the legal correspondence that he received and conveyed the pre-indictment plea offer from the Commonwealth, and [the defendant] rejected it. [The defendant] will repeat his affidavit stating that he was never informed of the pre-indictment plea offer."
Discussion. As the motion judge noted, a "hearing is required [on a defendant's posttrial motion for new trial] only when there is a substantial issue raised by the motion or affidavits ... supported by a substantial evidentiary showing" (quotation omitted). "It is beyond dispute that a defendant's decision whether to plead guilty or proceed to a trial is a critical stage in a criminal proceeding for which he is constitutionally entitled to the effective assistance of counsel." Commonwealth v. Mahar, 442 Mass. 11, 14 (2004).
Failure to communicate a government plea offer to a client certainly would provide a basis for a successful claim of ineffective assistance of counsel. The judge, however, found the defendant's affidavit not to be credible. The cases are legion in which our appellate courts have said that a judge may discredit self-serving statements in affidavits submitted by defendants in support of a motion for new trial, even without holding the evidentiary hearing that would ordinarily be necessary to assess a witness's credibility. See, e.g., Commonwealth v. Sanchez, 476 Mass. 725, 742 (2017).
At this juncture we need not determine what remedy would be appropriate, which the Commonwealth asserts is an open question.
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The defendant, however, points out that this is not a case in which there is merely a naked affidavit from the defendant because he also submitted letters from his trial counsels' counsel. However, he did not obtain affidavits from them, nor did he introduce evidence that he had attempted to obtain affidavits but been unable to do so. To be sure, the representation made in the letter from counsel for Doherty, while ambiguous, can be read to imply that Doherty is unaware of any plea offer made in the defendant's case prior to Doherty's own appointment as counsel. If an offer had been made and conveyed to Attorney De La Cruz, Doherty likely should have been informed of it when he took over representation of the defendant as knowledge of that offer would have been critical information for Doherty in any subsequent plea negotiation. The judge was certainly correct that it would have been in De La Cruz's interest to convey any offer he received to the defendant. But even skilled lawyers make mistakes. Nonetheless, the judge was not required to hold an evidentiary hearing based on the ambiguous hearsay letter.
Had the defendant introduced an affidavit from Doherty or counsel on his behalf stating that Doherty was unaware of any plea offer made prior to his own appointment as counsel, and an affidavit from De La Cruz averring that a plea deal had been offered and conveyed to the defendant during his representation of the defendant -– or had the defendant presented evidence that he attempted to secure affidavits addressing these issues but was unsuccessful –- the defendant's showing of a need for an evidentiary hearing, at which the defendant could summons and present testimony of Attorneys De La Cruz and Doherty (as well as his own testimony) in order to provide an adequate basis for fact finding by the motion judge, would have been far stronger than what we have on this record. But the letters submitted are not adequate substitutes for affidavits from counsel, and, consequently, the order of the motion judge will be affirmed. We note that a defendant is entitled to bring a motion under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), "at any time," and our decision is therefore without prejudice to the defendant renewing his motion in the trial court should he obtain additional affidavits as described above (or seek, but fail to obtain them).
Order denying motion for reconsideration and for relief under Rule 30 (b) affirmed.