Opinion
11-P-1147
04-13-2012
COMMONWEALTH v. OTILIO ROBLES.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of (1) his motion, on the ground of ineffective assistance of counsel, to withdraw his plea and for new trial, and (2) his motion for postconviction discovery. We review for abuse of discretion or significant error of law. Commonwealth v. Grace, 397 Mass. 303, 307 (1986) (review of motion for new trial). Commonwealth v. Lynch, 439 Mass. 532, 545, cert. denied, 540 U.S. 1059 (2003) (review of motion for postconviction discovery). We discern no abuse of discretion or error of law here.
The defendant argues that his plea counsel failed to make an independent investigation into the facts of his case and that, as a result, counsel was ineffective. It bears emphasis at the outset that the defendant does not deny in his appellate filings that he sold large amounts of heroin to a confidential informant in a controlled buy in a school parking lot, nor does he deny that more than three thousand packets of heroin, along with much related drug trafficking paraphernalia, were found in a box near the bed in which he was sleeping when he was arrested, nor does he deny that he possessed the heroin and the ammunition in the apartment or the ammunition found in the car. Nor did the defendant deny any of these crucial facts in his affidavits submitted below. Furthermore, he did not deny the facts to his plea counsel during the preparatory phase of the case, or leading up to the plea. And, most significantly, he affirmatively admitted under oath, in detail, under close and careful questioning by the plea judge, who also was the motion judge, all of the details of the various crimes with which he was charged. Although it is true that counsel has ''a duty to make reasonable investigations,' counsel is also afforded the opportunity to 'make a reasonable decision that makes particular investigations unnecessary." Commonwealth v. Denis, 442 Mass. 617, 629 (2004), quoting from Strickland v. Washington, 466 U.S. 668, 691 (1984). Here, counsel obtained pertinent police records, the grand jury minutes, a police affidavit, the application for the search warrant, statements made by the defendant (and the codefendant), drug certifications, and police reports. All of these documents supported the crimes with which the defendant was charged and, moreover, were consistent with the defendant's admissions. In these circumstances, we cannot say that the judge abused her discretion in concluding that counsel's decision not to investigate further did not amount to ineffective assistance of counsel, particularly against the backdrop of the fact that counsel had negotiated an extremely beneficial plea bargain for the defendant.
The defendant appears to make a subsidiary argument that his plea counsel was ineffective because he failed to move to suppress. In fact, counsel filed a motion to suppress the ammunition found in the car. The remaining evidence (the heroin and the ammunition from the apartment) was obtained pursuant to a search warrant, and the defendant does not articulate on what basis a motion to suppress should have been made, let alone on what basis it would have been allowed. See Commonwealth v. Comita, 441 Mass. 86, 91 (2004) (where defendant claims ineffective assistance of counsel for failure to file motion to suppress, 'defendant has to demonstrate a likelihood that the motion to suppress would have been successful').
We likewise perceive no abuse of discretion in the denial of the defendant's postconviction motion for discovery. 'To satisfy the standard for discovery under a motion for a new trial based on newly discovered evidence, 'a defendant must make specific, not speculative or conclusory, allegations that the newly discovered evidence would have 'materially aid[ed] the defense against the pending charges,' . . . and that this evidence if explored further through discovery, could yield evidence that might have 'played an important role in the jury's deliberations and conclusions, even though it is not certain that the evidence would have produced a verdict of not guilty."" Commonwealth v. Morgan, 453 Mass. 54, 62 (2009), quoting from Commonwealth v. Daniels, 445 Mass. 392, 407 (2005). That showing was not met here, particularly in light of the defendant's acknowledgment of guilt, the admissions and testimony of his codefendant, the physical evidence, and the multiple firsthand confirmatory observations by police officers (even assuming one were to exclude information coming only from Detective Barkyoumb).
Order denying motion for new trial affirmed.
By the Court (Kantrowitz, Wolohojian & Sullivan, JJ.),