Opinion
No. 12–P–1395.
2013-08-23
COMMONWEALTH v. Richard PRUNIER.
By the Court (TRAINOR, GRAINGER & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On August 17, 2011, the defendant pleaded guilty in Superior Court to four counts of assault and battery on a correctional officer, one count of simple assault and battery, and one count of destruction of property less than $250. On September 29, 2011, he was sentenced to concurrent prison terms of seven to ten years on two counts of assault and battery on a correctional officer, fifteen years' concurrent probation on the third count, and fifteen years' probation on the fourth count to commence from and after the seven to ten-year prison sentence. The court also imposed a two to two and-one-half-year sentence for simple assault and battery and a sixty-day sentence for malicious destruction of property, those house of correction sentences to run concurrently with the seven to ten-year sentence. On June 6, 2012, the defendant filed a motion to withdraw his pleas of guilty on the grounds that (1) the judge imposed a harsher sentence than the sentence recommended by the prosecutor but failed to give the defendant an opportunity to withdraw his pleas, and (2) trial counsel provided ineffective assistance by failing to inform the defendant of the potential consequences of his guilty pleas. The motion judge, who was also the plea and sentencing judge, denied the motion without a hearing. Withdrawal of guilty pleas. The judge informed the defendant that he would not impose a sentence exceeding the prosecutor's recommendation without first allowing the defendant an opportunity to withdraw his guilty pleas in accordance with Mass.R.Crim.P. 12(c), as appearing in 442 Mass. 1511 (2004). Neither the prosecutor nor the defendant recommended probation in addition to incarceration. It is undisputed that the judge did not give the defendant an opportunity to withdraw his guilty pleas at the time of sentencing.
There were two sets of indictments. The first set was handed down on May 5, 2011, and comprised two indictments for assault and battery on a correctional officer. All the remaining counts were the subject of the second set of indictments, returned on June 21, 2011.
The defendant asserts that the sentence imposed was harsher than the sentence recommended by the prosecutor because it included fifteen years' probation, beginning from and after the seven to ten-year prison sentence. We review the motion judge's denial of the defendant's motion to withdraw his guilty pleas for abuse of discretion. See Commonwealth v. Rodriguez, 52 Mass.App.Ct. 572, 581 (2001) (“The defendant's postconviction motion to withdraw a guilty plea is treated as a motion for a new trial, ... is addressed to the sound discretion of the trial judge, and, absent constitutional error, will not be reversed unless it appears that justice may not have been done”). Further, “[w]e grant substantial deference to a decision denying a [motion to withdraw a guilty plea and for a new trial] when the judge passing on the motion is the same judge who heard the plea.” Commonwealth v. Grant, 426 Mass. 667, 672 (1998).
The defendant also might be taken to argue that he was led to believe the prosecutor would seek a single nine to ten-year sentence for all six charges. Despite the unlikelihood of that scenario, his counsel's affidavit can be read to support this view. The transcript reflects that the prosecutor recommended multiple sentences during the sentencing hearing and the defendant did not object or voice any sort of surprise. In fact, the defendant's counsel recommended multiple concurrent sentences of twenty to thirty months in his sentencing recommendation, belying his later apparent assertion that only a single sentence was contemplated. The judge was not required to believe counsel's or the defendant's affidavits. See Commonwealth v. Pingaro, 44 Mass.App.Ct. 41, 48 (1997).
The defendant asserts that we should decide de novo whether the sentence imposed was less favorable than the sentence proposed, citing Commonwealth v. Barber, 37 Mass.App.Ct. 599 (1994). In Barber, the defendant never asserted a claim that the sentence was excessive in his motion for new trial. Instead, he raised the argument for the first time on appeal. This court considered the issue on the merits in order to “put it to rest.” Id. at 601. The present case is distinguishable. Here, the defendant raised his argument concerning the excessive sentence before the sentencing judge in his motion for a new trial. We therefore review the claim under the familiar deferential standard applicable to motions for a new trial.
“We will not assume that the defendant's plea was involuntary and unknowing and say as a matter of law that justice was not done simply because the record reflects noncompliance with rule 12.... ‘[W]hile compliance with the procedures set out in rule 12(c) is mandatory, adherence to or departure from them is but one factor to be considered in resolving’ whether a plea was knowingly and voluntarily made .... Each case must be analyzed individually to determine whether compliance with rule 12 would have made a difference in the decision of the defendant to plead guilty.” Commonwealth v. Rodriguez, supra at 580. See Commonwealth v. Nolan, 19 Mass.App.Ct. 491, 495 (1985) ( “[I]t is not every omission of a particular from the protocol of the rule that entitles a defendant at some later stage to negate his plea and claim a trial”).
Here, the defendant has not satisfied his burden to show that noncompliance with rule 12 made any difference in his decision to plead guilty. The defendant has not asserted that, if fully informed of the possibility of probationary time beyond his prison sentence, he would have preferred to go to trial and face a ten-year maximum term on each of the four charges of assault and battery on a correctional officer. The defendant has not suggested that he would have benefited from going to trial, or pointed to any weaknesses in the Commonwealth's case against him. Indeed, the defendant admitted his guilt during the plea colloquy and has never thereafter, including in his motion for new trial, maintained that he is innocent of the charges. See Commonwealth v. Rodriguez, supra at 581–582.
The judge engaged in a lengthy and thorough plea colloquy. He informed the defendant of the maximum possible sentences and advised the defendant that he was not bound by the prosecutor's recommendation. The judge specifically informed the defendant that the court could impose probation on some of the indictments and the defendant stated that he understood. In these circumstances, the judge did not abuse his discretion in denying the defendant's motion to withdraw his pleas. See Commonwealth v. Clerico, 35 Mass.App.Ct. 407, 413–414 (1993); Commonwealth v. Glines, 40 Mass.App.Ct. 95, 99 (1996).
Ineffective assistance claims. The defendant also asserts that his counsel provided ineffective assistance by failing to inform him that probation was a possible consequence of his guilty pleas, object to the prosecutor's recommendation made at the sentencing hearing, and inquire whether any potential probationary term would run concurrently or consecutively to a prison sentence. We address these claims under the familiar standard. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In this case the defendant's ineffective assistance claims falter on the second prong of Saferian. “Where a claim of ineffective assistance is directed to counsel's representation incident to a guilty plea, the second prong of the Saferian test requires a defendant to show ‘that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’ “ Commonwealth v. Pike, 53 Mass.App.Ct. 757, 762 (2002), quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985). The motion judge's determination that the defendant did not meet this burden, and thus failed to demonstrate entitlement to a new trial, is accorded “special deference” where the motion judge was also the plea and sentencing judge. See Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996). As discussed supra, nothing in the defendant's submissions satisfy his burden to prove that, had he had been fully informed, he would have insisted on going to trial.
Conclusion. The order denying the defendant's motion to withdraw his guilty pleas is affirmed.
So ordered.