Opinion
17-P-1258
09-20-2019
COMMONWEALTH v. Dennis SENA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On July 31, 2013, the defendant was indicted for distribution of cocaine (subsequent offense), G. L. c. 94C, § 32A (d ) (count 1), possession of cocaine with intent to distribute (subsequent offense), G. L. c. 94C, § 32A (d ) (count 2), distribution of marijuana (subsequent offense), G. L. c. 94C, § 32C (b ) (count 3), possession of marijuana with intent to distribute (subsequent offense), G. L. c. 94C, § 32C (b ) (count 4), and money laundering, G. L. c. 267A, § 2 (count 5). He was indicted as a habitual criminal, G. L. c. 279, § 25 (a ), on counts 1, 2, and 5. On June 1, 2015, the judge allowed the Commonwealth's motion to dismiss the habitual criminal portions of the indictments, and the defendant entered agreed-to guilty pleas on all five counts. On counts 1 and 2, he was sentenced to concurrent sentences of from ten years to ten years and one day in State prison. On counts 3 and 4, he was sentenced to two years in the house of correction, concurrent with each other and with counts 1 and 2. On count 5, he was sentenced to four and one-half to five years in State prison, concurrent with counts 1 and 2. The sentences on all five counts (collectively, drug case) were concurrent with a fifteen-year sentence he had received two months prior in a case not before us (stabbing case), in which he was convicted, as a habitual criminal, of assault and battery by means of a dangerous weapon causing serious bodily injury and assault and battery by means of a dangerous weapon. He subsequently filed a motion to withdraw guilty plea and enforce plea bargain, which was denied, and now appeals, pro se, from the denial of that motion. We review for significant error of law or other abuse of discretion, Commonwealth v. Williams, 71 Mass. App. Ct. 348, 353, 881 N.E.2d 1148 (2008), and accept the judge's factual findings unless clearly erroneous. Commonwealth v. Grant, 78 Mass. App. Ct. 450, 454, 940 N.E.2d 448 (2010). Ultimately, we see no abuse of discretion or other error of law in the judge's denial of the motion.
We note that at the time of the stabbing case, the defendant was known as Dennis Senna.
Discussion. 1. The conditionality of the probation surrender. The defendant argues that he was induced to admit to a probation violation in an unrelated matter in exchange for a sentencing recommendation of from five years to five years and one day in the drug case (five-year offer), but that the Commonwealth reneged on this agreement. The defendant's argument is that, from the beginning, the drug-case prosecutor had offered the defendant a five-year sentencing recommendation in exchange for his guilty plea in the drug case. He argues that, while this offer was initially unconditional, the drug-case prosecutor at the May 6, 2014 probation violation hearing changed the terms of the agreement, making it conditional on the defendant's admission to violating probation. The defendant performed by admitting to violating probation, but the drug-case prosecutor later withdrew the five-year offer, in violation of the agreement. "Whether an enforceable promise exists is primarily a question of contract law, ... but, in addition, [w]e would go beyond contract principles to order specific performance of a prosecutor's promise even where no contract may have existed, if, on principles of fundamental fairness encompassed within notions of due process of law, the promise should be enforced" (quotation and citations omitted). Commonwealth v. Francis, 477 Mass. 582, 585, 79 N.E.3d 1045 (2017).
The defendant's argument depends on two factual premises: that a five-year offer was on the table in the drug case, and that the drug-case prosecutor subsequently changed the terms of the offer, making it conditional on the defendant's admission to violating the terms of his probation. Both premises are contested.
Since, as will be described below, the Commonwealth subsequently purported to revoke the five-year offer, the defendant's entitlement to relief would also require that the Commonwealth's offer was irrevocable because it was explicitly so, because of the defendant's detrimental reliance on it in stipulating to the probation violation, or for some other reason.
With respect to the first factual premise, that there was a stand-alone five-year offer on the drug case, the Commonwealth says that "any offer on the drug case was contingent on a plea to the stabbing case." As the defendant notes, there was evidence suggesting the contrary.
At a lobby conference on October 31, 2013, at which plea resolutions in both the stabbing and drug cases were discussed, the drug-case prosecutor stated, "The Commonwealth's recommendation on [the drug] case, if it were to be standing in isolation would be five years to five years and one day in state prison." This of course is not phrased as an offer. But the record also contains an e-mail from the drug-case prosecutor to defense counsel dated June 5, 2014 (approximately one month after the probation violation hearing), stating, "[T]he 5-5+1 day offer is no longer on the table given that it's been out there for seven months without Mr. Sena accepting." This e-mail might be reasonably interpreted as withdrawing an offer, which presupposes that there was one to begin with. In addition, on March 20. 2015, at the beginning of the first trial in the stabbing case (which ultimately resulted in a mistrial because the jury were deadlocked), the drug-case prosecutor said, "[A]t some point in time ... there was an offer... It was a[t] one point five to five and a day, but that offer expired or was rejected." When the judge asked if on November 3, 2014, when the defendant, through his third trial counsel, first attempted to raise the alleged agreement, it was "still extant," the drug-case prosecutor said, "No, not in my opinion.... And I have documentary proof of that."
The second factual premise on which the defendant's argument rests, that the Commonwealth conditionalized the five-year offer on the defendant's admitting to violating probation, was addressed by the judge, who wrote:
"Notably absent from the defendant's submissions are any affidavits from the defendant's various attorneys showing that the Commonwealth made an irrevocable plea offer in exchange for the defendant's stipulation to a violation of probation. Further, the defendant's sworn and unequivocal responses during the colloquy relating to his stipulation to a violation of probation, denying that he had been promised anything or induced to stipulate, undercut the claim of a binding promise by the Commonwealth. Similarly, at the time of the defendant's change of plea the defendant (again under oath) acknowledged his understanding of the sentencing agreement reached between the Commonwealth and [his attorney], and neither the defendant nor his attorney referenced any other binding agreement. Under all of the circumstances, the defendant's assertion that he detrimentally relied on any earlier plea offer rings hollow."
It was within the judge's discretion to draw a negative inference from the defendant's failure to provide an affidavit from counsel, see Commonwealth v. Lys, 481 Mass. 1, 6, 110 N.E.3d 1201 (2018), even though the defendant did provide affidavits from his mother and his aunt (as well as one of his own), both of which stated that they were told contemporaneously by the defendant's then-counsel that the drug-case prosecutor stated that he would not keep the five-year offer open unless the defendant stipulated that he had violated the terms of his probation. Even assuming those affidavits were truthful, they report only hearsay.
We note that the judge found that the defendant stated at the probation violation hearing that he had not been "promised anything or induced to stipulate," but that the defendant in fact made no such statement at that hearing. The defendant stated only that nobody "forced [him] or threatened [him] or coerced [him] into making this decision to give up [his] right to a contested hearing." The defendant at the time may well have interpreted the drug-case prosecutor's statement merely as an amendment of the offer. The transcript provided to us is incomplete, but the Commonwealth does not argue that the defendant denied that he had been promised anything or induced in a part of the transcript that was not transcribed. Of course, the defendant's affidavit, written one and one-half years later, did characterize the prosecutor's conduct as threatening, but the judge did not rely upon these statements.
Also, although the judge was correct that neither the defendant nor his attorney referred to an alleged reneged-upon agreement at the plea colloquy, this agreement clearly was not fabricated only after the defendant accepted his plea in the drug case. Defense counsel stated at the November 3, 2014 hearing, several months prior to the plea colloquy, "Mr. Senna tells me that he had prior counsel ... who after meeting with the District Attorney's Office came to him and told him that if you give up your right to ... fight the probation surrender ... we'll give you the 5 to 5 and a day."
And, as the Commonwealth argues, various acts and omissions by the defendant and defense counsel following the probation hearing also are hard to square with the defendant's argument, Correspondence in the record shows that defense counsel was preparing a motion to suppress before the drug-case prosecutor sent the withdrawal e-mail, and the defendant did not contemporaneously complain when the prosecutor withdrew the five-year offer. On this record, and in the absence of an affidavit from counsel, the judge's finding is not clearly erroneous. Should the defendant refile his motion for a new trial with such an affidavit, and should it support his claims, a judge may of course "grant a new trial at any time if it appears that justice may not have been done." See Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001).
2. Ineffective assistance of counsel. The defendant's claim of ineffective assistance of counsel is more straightforward. The defendant had three trial attorneys. First trial counsel represented him until August 14, 2014. That same day second trial counsel was appointed, and served until November 3, 2014, when third trial counsel took over. The defendant argues that he was denied the effective assistance of counsel at a suppression hearing on November 3, 2014, because second trial counsel had not prepared for the motion -- having been admonished by the judge at a prior hearing for lack of preparation -- and because third trial counsel had not had enough time to familiarize himself with the case. The defendant withdrew the motion to suppress at the November 3 hearing on the advice of third trial counsel, and it was not ultimately argued.
The defendant also argues that his right to counsel was impaired because his October 17, 2014 motion for new counsel was never ruled upon. We disagree. The issue became moot once the defendant retained private counsel, who filed an appearance at the next scheduled hearing.
A defendant asserting ineffective assistance of counsel must demonstrate that counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer" and that "it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Regardless of how we assess the attorneys' behavior –- and we see nothing from the November 3 hearing that demonstrates it fell below the Saferian standard –- we are unpersuaded that the defendant was deprived of an otherwise available, substantial ground of defense as he has not demonstrated that his motion to suppress would have been allowed.
A police report, included in the appendix of the Commonwealth's opposition to the defendant's motion to withdraw his guilty plea, provides some sense of the facts underlying the motion to suppress. The defendant was seen twice entering and exiting a vehicle, occupied by two other individuals, that the police had observed driving around the neighborhood. They believed that both the driving and the defendant's entering and exiting the vehicle constituted drug dealing activity. Eventually the police stopped the vehicle and saw three plastic bags of white powder in plain view. The passenger, after being Mirandized, stated that the driver had bought drugs from the defendant. The police continued to surveil the area and observed the defendant entering and shortly thereafter exiting another vehicle in a manner they believed to be consistent with drug dealing. After pursuing the defendant, he was arrested. Following the arrest, the driver of the second vehicle told the police that she had bought drugs from a man named "D," and gave the police D's cell phone number. The police called the number, and the defendant's cell phone rang while the defendant was in police custody.
Our record does not contain any written motions to suppress, but the defendant's withdrawn motion to suppress appears only to challenge police actions involving the occupants of the vehicles who allegedly purchased the drugs. He argues that he had the right to challenge those actions under the doctrine of "target standing." However, this doctrine has not been adopted in Massachusetts, and the Supreme Judicial Court has at most speculated that the need to create a deterrent "may require, or at least make appropriate, recognition of target standing" only in cases with "distinctly egregious police conduct." Commonwealth v. Santiago, 470 Mass. 574, 578, 24 N.E.3d 560 (2015). Given the state of the law, we are not persuaded that the motion to suppress had merit, or therefore that any failures of counsel with respect to preparing or advancing the motion deprived the defendant of a substantial ground of defense.
3. The length of the minimum sentence. Finally, the defendant argues that his plea was not intelligent and voluntary because, he claims, the stabbing-case prosecutor misrepresented the mandatory minimum sentences of some of the crimes for which he was indicted. A guilty plea is unknowing in violation of due process if entered without knowledge of the mandatory minimum sentences of the charges to which the defendant has pleaded, see Jamison v. Klem, 544 F.3d 266, 277-279 (3d Cir. 2008), and an unknowing plea may be withdrawn without a further showing of prejudice. See Commonwealth v. Colon, 439 Mass. 519, 529, 789 N.E.2d 566 (2003). The defendant's complaint, however, is not that he was misinformed about the sentences on the charges to which he pleaded, but about the sentences on the charges with respect to which he was indicted. Specifically, at the October 31, 2013 lobby conference, the stabbing-case prosecutor stated that, because the defendant was indicted for subsequent offenses and as a habitual offender, the mandatory minimum sentence in the drug case was fifteen years. The rationale appears to have been that the maximum sentence under the subsequent offender statute applicable to counts 1 and 2 imposes a maximum penalty of fifteen years, and the habitual criminal statute requires the judge to impose the maximum sentence, making the maximum the minimum. The defendant also refers to a statement by the stabbing-case prosecutor at a hearing on October 7, 2014, that, if convicted in both the stabbing and drug cases, he would receive mandatory consecutive fifteen-year sentences. The rationale for this statement was that the defendant committed the crimes in the drug case while on bail in the stabbing case, that G. L. c. 279, § 8B, requires that the sentences in the two cases be imposed consecutively, and that the minimum sentence in each case was fifteen years.
The record shows that these statements were not isolated, as both challenged statements were repeated during trial in the stabbing case, where the prosecutor stated that "the Commonwealth's position has always been that he faces thirty years mandatory if he's convicted as an habitual on both cases."
In fact, although the minimum sentence in the stabbing case was fifteen years, it was not a mandatory minimum without eligibility for good time credits and parole. The same was true for the minimum sentence in the drug case. Further, the defendant argues with some force that, in this case, the minimum was three and one-half years, not fifteen. Although we need not and do not decide the issue, citing Commonwealth v. Richardson, 469 Mass. 248, 249, 13 N.E.3d 989 (2014), the defendant argues that both the subsequent offense statute and the habitual criminal statute are sentencing enhancements; that the Legislature has not "explicitly declared its intent to permit multiple sentencing enhancements" in this area; that he thus may not be sentenced under both; that the minimum sentence for the crimes under counts 1 and 2 without application of the habitual criminal statute is three and one-half years; and that, by combining the habitual criminal statute with the statute punishing his conduct under counts 1 and 2 as a first offense, G. L. c. 94C, § 32A (c ), the minimum sentence is only ten years. Finally, he acknowledges that G. L. c. 279, § 8B, did require the stabbing-case sentence be imposed consecutively with the sentence in the drug case.
The defendant's brief might be read as challenging the requirement that the sentences be consecutive, but, to the extent that he is, he is wrong.
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While the stabbing-case prosecutor's statements thus were partially incorrect, none of them misinformed the defendant about the mandatory minimum sentence he faced in the pleas he now argues were defective: his pleas to distribution and possession with intent to distribute as subsequent offenses, but not as a habitual criminal. The defendant does not argue that he was misinformed about, or did not know, the mandatory minimum sentences he faced on these charges. This is unsurprising given that all the statements the defendant cites either assumed that he would be convicted as a habitual criminal, which he was not, or referred to a different case entirely.
Even assuming the defendant was misinformed by a misrepresentation by the stabbing-case prosecutor, then, that misinformation did not render his plea to the charges before us unknowing. They may, however, have rendered his plea involuntary. When one is induced to plead by a prosecutorial misrepresentation that if he is found guilty at trial he will face a consequence that, as a matter of law, is harsher than he actually will, that may render the plea involuntary. See Commonwealth v. Scott, 467 Mass. 336, 348, 5 N.E.3d 530 (2014) (government misrepresentations can render plea involuntary). See also Commonwealth v. Williams, 89 Mass. App. Ct. 383, 390, 50 N.E.3d 206 (2016), citing Commonwealth v. Lenhoff, 796 A.2d 338, 342-343 (Pa. Super. 2002) ("where plea negotiations were flawed from outset by incorrect sentencing parameters, defendant was entitled to withdraw plea"). But, while an unknowing plea may be withdrawn regardless of whether the missing knowledge would have influenced a defendant's decision to plead, Colon, 439 Mass. at 529, 789 N.E.2d 566, to demonstrate that the plea is involuntary because of how it was induced, a defendant must demonstrate not only that he was misinformed, but also that the misinformation influenced his decision to enter his plea. See Scott, supra at 346, 5 N.E.3d 530, citing Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006).
The defendant does not aver in his affidavit that the misinformation about mandatory minima played any role in his decision to plead. Nor can this be inferred from any of his conduct throughout the proceedings. In the absence of evidence that the prosecutorial misstatements caused the defendant to accept the plea, his claim that it was involuntary is unavailing. Consequently, the defendant has not shown that the judge abused his discretion in denying his motion.
Conclusion. The order denying the defendant's motion to withdraw guilty plea and enforce plea bargain is affirmed.
So ordered.
Affirmed.