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Commonwealth v. Rice

Appeals Court of Massachusetts.
Jun 11, 2012
81 Mass. App. Ct. 1141 (Mass. App. Ct. 2012)

Opinion

No. 11–P–700.

2012-06-11

COMMONWEALTH v. Wayne RICE.


By the Court (CYPHER, HANLON & CARHART, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from the denial of his motion to withdraw his guilty plea and for a new trial. On appeal, he argues that the indictment charging attempted murder was defective, there was insufficient evidence to support his conviction of that charge, his plea of guilty to that charge was not intelligent, and he received ineffective assistance of counsel. We affirm.

Background. The defendant was indicted for attempted murder in violation of G.L. c. 265, § 16, assault with intent to murder in violation of G.L. c. 265, § 15, assault and battery causing serious bodily injury in violation of G.L. c. 265, § 13( b )(i), and assault and battery in violation of G.L. c. 265, § 13( a ). The indictments arose out of an incident wherein the defendant severely beat, strangled, and suffocated his girlfriend while telling her he was going to kill her. The case was called for trial on June 8, 2007. On that date, defense counsel conveyed the Commonwealth's plea offer to the defendant and sought a continuance in order for the defendant to consider the offer.

Defense counsel's request for a continuance was denied. The judge did, however, give the defendant approximately fifty minutes to consult with counsel and consider the offer. After engaging in a thorough colloquy with the judge, the defendant pleaded guilty to the first and third indictments.

Defense counsel received the plea offer the afternoon before but was unable to convey it to the defendant until the following day.

On June 13, 2007, the defendant was sentenced to nine and one-half to ten years in State prison.

A nolle prosequi was entered on each of the other two counts.

The defendant did not appeal his sentence.

This sentence was imposed on count one. The defendant also received a concurrent four and one-half to five year State prison sentence on count three.

On December 31, 2010, the defendant moved to vacate the judgment of conviction or, in the alternative, for a new trial. The same judge who took the defendant's plea and imposed sentence denied the defendant's motion on April 11, 2010.

Discussion. Because “[a] postsentence motion to withdraw a plea is treated as a motion for a new trial,” Commonwealth v. Williams, 71 Mass.App.Ct. 348, 353 (2008), we review the judge's ruling on the defendant's motion for “a significant error of law or other abuse of discretion.” Commonwealth v. Grace, 397 Mass. 303, 307 (1986). The judge's decision is entitled to substantial deference because he heard the defendant's plea and ruled on his posttrial motions. Commonwealth v. Grant, 426 Mass. 667, 672 (1998).

1. Sufficiency of indictment. The defendant argues that the indictment charging him with attempting to commit murder “by any means” failed to allege a crime because it did not allege an overt act. Although the defendant did not move to dismiss the indictment on this ground, his claim is not waived “because whether an indictment fails to allege a fact necessary to constitute an offense is a matter of jurisdiction.” Commonwealth v. Senior, 454 Mass. 12, 14 (2009).

An indictment must contain “a plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof.” Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979). An indictment is sufficient “if the offense is charged with sufficient clarity to show a violation of law and to permit the defendant to know the nature of the accusation against him.” Commonwealth v. Green, 399 Mass. 565, 566 (1987).

The indictment at issue in this case alleged that the defendant, “did, by any means, attempt to commit murder to another[.]” It is well settled that “[a] charge of an attempt should set forth in direct terms that the defendant attempted to commit the crime, and should allege the act or acts done toward its commission.” Commonwealth v. Gosselin, 365 Mass. 116, 121 (1974). While the indictment did not allege that the defendant engaged in an overt act, it did cite to G.L. c. 265, § 16, which provides, in pertinent part, that “[w]hoever attempts to commit murder by poisoning, drowning or strangling another person, or by any means not constituting an assault with intent to commit murder, shall be punished[.]” Whereas an indictment under the general attempt statute, G.L. c. 274, § 6,

would require the clear articulation of an overt act, Commonwealth v. Foley, 24 Mass.App.Ct. 114, 115 (1987), an indictment under G.L. c. 265, § 16, does not because the overt act is set forth in the language of the statute itself.

.General Laws c. 274, § 6, provides, in pertinent part, that “[w]hoever attempts to commit a crime by doing any act toward its commission, but fails in its perpetration ... shall ... be punished[.]”

The defendant was on notice that he was alleged to have attempted to commit murder “by poisoning, drowning or strangling another person, or by any means not constituting an assault[.]” The Commonwealth need not set forth in the indictment every element of the crime, and the indictment was sufficient.

One may be found guilty of attempted murder either under G.L. c. 274, § 6, or under G.L. c. 265, § 16. Commonwealth v. Dixon, 34 Mass.App.Ct. 653, 655 (1993).

2. Sufficiency of the evidence. The defendant next challenges the sufficiency of the evidence with respect to the charge of attempted murder. The elements of attempted murder under G .L. c. 265, § 16, “consist of the specific intent to kill and malice, plus ‘some overt act towards its commission, and failure or interruption’ that prevents completion of that crime.” Commonwealth v. Murray, 51 Mass.App.Ct. 57, 61 (2001), quoting from Commonwealth v. Dixon, 34 Mass.App.Ct. 653, 655 (1993). Malice means “absence of justification, excuse and mitigation.” Commonwealth v. Henson, 394 Mass. 584, 591 (1985).

Here, the defendant acknowledged that he beat the victim and told her he was going to kill her. Such facts support an inference that the defendant had the specific intent to kill. See ibid. There was no evidence of mitigation, justification or excuse, and the defendant acknowledged that he placed his hands around the victim's throat. The victim's injuries provided evidence of choking, and “strangling or choking, manually or by ligature, usually constitutes the overt act required for attempted murder by strangulation.” Dixon, supra at 656. Thus, there was ample evidence to support the defendant's conviction under G.L. c. 265, § 16.

3. Intelligence of plea. The defendant next contends that his plea of guilty to attempted murder was not intelligent. “A defendant's plea is intelligent when made with understanding of the nature of the charges (understanding of the law in relation to the facts) and the consequences of his plea (the legal consequences and constitutional rights he forgoes by pleading guilty rather than proceeding to trial)[.]” Commonwealth v. Hiskin, 68 Mass.App.Ct. 633, 638 (2007). “[T]he plea record must demonstrate either that the defendant was advised of the elements of the offense or that he admitted facts constituting the unexplained elements.” Commonwealth v. Lopez, 426 Mass. 657, 660 (1998). To satisfy this requirement, the judge may explain to the defendant the elements of the crime; counsel may represent “that she has explained to the defendant the elements he admits by his plea”; or the defendant may admit “to facts recited during the colloquy which constitute the unexplained elements.” Commonwealth v. Correa, 43 Mass.App.Ct. 714, 717 (1997).

After determining the defendant's age and education level, the judge in this case asked the defendant whether he had been treated for any mental condition or was then suffering from any mental disorder. The defendant responded, “No, sir.” The defendant stated that he was not under the influence of any drugs or alcohol, and, after a recitation by the prosecutor of the recommended sentence, that he understood the prosecutor's offer. The judge told the defendant that he was not bound by the prosecutor's recommendation and advised the defendant of the constitutional rights which he would be waiving by pleading guilty. The defendant stated that he understood. After the prosecutor recited the facts underlying the charges, the defendant admitted to the truth of those facts. The defendant stated that he was pleading guilty because he was in fact guilty, and that he had adequate opportunity to discuss the case with trial counsel. When asked whether counsel had explained the elements of the offense to him, the defendant responded, “Yes, sir.” When asked whether he understood those elements, the defendant responded, “Yes, sir. Yes, sir.” Finally, the judge asked whether counsel had discussed possible defenses with the defendant, and both the defendant and counsel confirmed he had.

In assessing the intelligence of the defendant's plea, “we necessarily rely on the defendant's sworn responses to the judge's informed questions made in the solemnity of a formal plea proceeding .” Hiskin, supra at 638. The defendant's sworn statements are ones “of consequence and not mere conveniences later to be discarded.” Id. at 634. The defendant and trial counsel stated that defenses were discussed, and “[t]he prosecutor's recitation of the account of the [incident] and the defendant's acknowledgment of his participation in response to the judge's questioning renders the plea intelligent.” Id. at 639–640. “Nothing in the defendant's affidavit amounted to a credible reason for granting a new trial,” and there was no error in the judge's denial of the defendant's motion. Id. at 640.

4. Ineffective assistance of counsel. Finally, the defendant claims that he received ineffective assistance of counsel because trial counsel did not (1) advise him of the elements of attempted murder, and (2) bring the defendant's mental disorder to the judge's attention as a mitigating factor during sentencing. These claims have no merit. As previously discussed, the record demonstrates that trial counsel explained the elements of the offenses to the defendant, including the defense of voluntary intoxication.

Trial counsel made a thorough argument on the defendant's behalf at sentencing, and argued several mitigating factors to the judge. The defendant's sworn statements during his plea colloquy demonstrate that he has never been treated for a mental condition of any kind and that he was not currently suffering from any mental disorder; therefore, trial counsel had no basis upon which to argue that the defendant's mental disorder should be considered in sentencing. There was no ineffective assistance.

An affidavit from trial counsel is not included in the record. However, in correspondence to appellate counsel, attached to the affidavit of appellate counsel, trial counsel states that “[t]he issue of voluntary intoxication was reviewed, on the issue of specific intent. [The defendant] understood that he would have to testify at trial to raise that defense, as he was not arrested until several weeks after the incident. He understood that his prior criminal convictions would most likely be offered up at [t]rial by the Commonwealth on the issue of credibility. He further understood that the victim would dispute his assertion of intoxication.” The decision not to proceed to trial on the theory that the defendant's voluntary intoxication negated his specific intent to kill was clearly a strategic one, which we cannot say was manifestly unreasonable when made. See Commonwealth v. Martin, 427 Mass. 816, 822 (1998) (“An attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made”).

Order dated April 11, 2011, affirmed.


Summaries of

Commonwealth v. Rice

Appeals Court of Massachusetts.
Jun 11, 2012
81 Mass. App. Ct. 1141 (Mass. App. Ct. 2012)
Case details for

Commonwealth v. Rice

Case Details

Full title:COMMONWEALTH v. Wayne RICE.

Court:Appeals Court of Massachusetts.

Date published: Jun 11, 2012

Citations

81 Mass. App. Ct. 1141 (Mass. App. Ct. 2012)
968 N.E.2d 941