Opinion
07-P-1635
10-24-2011
COMMONWEALTH v. ANTONIO SANTOS.
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
On June 10, 2003, the defendant pleaded guilty to two counts of possession of marijuana with intent to distribute, and one count of possession of marijuana, subsequent offense. A District Court judge accepted the pleas and sentenced him to fifteen months of probation. Over four years later, the defendant moved to withdraw his pleas, claiming that he was incompetent to offer a guilty plea at the time he pleaded guilty. On September 13, 2007, the same judge who had accepted the pleas denied the motion without a hearing. We affirm.
The standard for competence to plead guilty is the same as competence to stand trial. Commonwealth v. Russin, 420 Mass. 309, 316-317 (1995). The test is whether the defendant 'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' of the proceeding against him. Commonwealth v. Goodreau, 442 Mass. 341, 350 (2004), quoting from Commonwealth v. Russin, supra at 317. Except to the extent that it bears on that test, a diagnosis of mental illness is beside the point. Commonwealth v. Robbins, 431 Mass. 442, 448 (2000).
The defendant supported his motion to withdraw his pleas with his own affidavit in which he stated that while he was receiving counseling between 1997 and 1999, he was diagnosed with dysthymic disorder and oppositional defiant disorder (ODD). He also averred that he terminated counseling in 1999 and refused to take prescribed medication, and that his condition was therefore subsequently left untreated. Although the defendant's affidavit stated in conclusory fashion that on June 10, 2003, he was not competent to plead guilty, to understand the consequences of doing so, or to assist his trial counsel, the defendant offered no specifics as to why. Conspicuously absent was any affidavit from the attorney who had represented the defendant at the time of the plea documenting that the defendant was unable to assist in his own defense or was otherwise incompetent to plead guilty or stand trial. Nor did the defendant provide any explanation from a mental health expert as to how diagnoses of ODD and dysthymic disorder might affect his competence to plead guilty. The defendant did provide an affidavit from his attorney on the plea withdrawal motion stating that in unrelated Federal criminal proceedings (brought in 2005 and still pending in 2007), a psychologist had determined that the defendant was incompetent to stand trial.
The psychologist in the Federal proceeding prepared a written report dated August 8, 2007. It is not clear whether defense counsel on the plea withdrawal motion had a copy of that report when she signed her affidavit on August 30, 2007, and, in any event, it does not appear from the record before us that the psychologist's report was ever submitted to the motion judge (who denied the motion to withdraw the guilty pleas on September 13, 2007). The defendant nevertheless included in the appellate record appendix a copy of the August 8, 2007, psychologist's report, and three other such psychologist reports that were prepared in 2008, 2009, and 2010. He has also filed a motion to expand the appellate record to include those filings. Since our consideration of whether the motion judge erred is properly confined to the record that was before him, we deny the motion to expand the record. Moreover, we note that the underlying substantive question is whether the defendant was competent to tender his pleas in 2003, and subsequent evaluations would be of little, if any, import to that question.
During the plea hearing, the judge conducted a colloquy with the defendant in an effort to ensure that the pleas were knowingly and voluntarily given. Throughout, the defendant's answers were coherent, responsive, and respectful. Nowhere in the transcript of that hearing is there evidence of any problems existing between the defendant and his then-counsel with regard to preparing for trial or considering a potential plea. To the contrary, the defendant expressly acknowledged that he had had enough time to discuss the case fully with his attorney, and that he was satisfied that the attorney was acting in his best interest and had fairly represented him. Before accepting the pleas, the judge found that the defendant voluntarily made them while understanding the consequences.
Especially where, as here, the motion judge was the plea judge, substantial deference is owed to the judge's decision on the motion to withdraw. We are to uphold the judge's ruling unless 'no conscientious judge, acting intelligently, could honestly have taken the view expressed by [him].' Commonwealth v. Gomez, 450 Mass. 704, 711 (2008), quoting from Commonwealth v. Goodreau, 442 Mass. at 348. On this record, the defendant has not come close to meeting that standard. The judge was not required to accept the defendant's self-serving claims of incompetency, especially where they were stated in only conclusory fashion. Commonwealth v. Marrero, 459 Mass. 235, 241 (2011). He was entitled to consider the defendant's responses and demeanor from the plea hearing, as well as the notable absence of supporting documentation from plea counsel. Commonwealth v. Goodreau, 442 Mass. at 354 (judge 'may take into account the suspicious failure to provide pertinent information from an expected and available source'). The defendant did not demonstrate how his prior diagnoses of ODD and dysthymic disorder, or his subsequent determination of incompetency to stand trial in 2007, had any appreciable bearing on his competency to offer a plea in 2003. Compare Commonwealth v. Companonio, 445 Mass. 39, 50 (2005) (characterizing postconviction commitment to a mental hospital as 'essentially irrelevant'). Therefore, the judge did not abuse his discretion in denying the motion or in determining that the defendant had not raised a 'substantial issue' requiring an evidentiary hearing. Commonwealth v. DeVincent, 421 Mass. 64, 67 (1995) ('Appellate courts generally defer to the sound discretion of the trial judge on whether a motion for a new trial requires an evidentiary hearing or whether it can be decided on the basis of the facts alleged in the affidavits').
The defendant seeks to make much of the fact that the judge did not specifically inquire at the plea hearing whether the defendant had been diagnosed with any mental illness. It is far from clear that the judge's asking that question would have elicited an affirmative response given that -- according to counsel's statements at oral argument -- the defendant was at that time in denial that he had any mental illnesses. In any event, the defendant offers no support for the proposition that his prior diagnoses of ODD and dysthymic disorder meant that he was incompetent to offer a plea in 2003.
See Commonwealth v. Bowler, 60 Mass. App. Ct. 209, 210 (2003) ('A postconviction motion to withdraw a plea is treated as a motion for a new trial '), quoting from Commonwealth v. Correa, 43 Mass. App. Ct. 714, 716 (1997).
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Order denying motion to withdraw guilty pleas affirmed.
By the Court (Meade, Wolohojian & Milkey, JJ.),