Opinion
14-P-162
06-05-2015
COMMONWEALTH v. CHRISTOPHER SERRET.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On July 2, 2008, the defendant was convicted of possession with intent to distribute cocaine, unlawful possession of a loaded firearm, and possession of ammunition. The defendant did not appeal. Approximately five years later, on April 6, 2013, he filed a motion for a new trial alleging that (1) he was deprived of the effective assistance of counsel due to trial counsel's failure to consult with and advise him concerning his right to appeal, and (2) the admission of drug and ballistic certificates to prove the identity of the cocaine and operability of the firearm violated his right of confrontation under the Sixth Amendment to the United States Constitution. Following a nonevidentiary hearing, the motion was denied by the trial judge in a margin endorsement without any written findings or rulings. We affirm.
To prevail on his claim of ineffective assistance, the defendant carried the burden of demonstrating that his counsel's performance fell measurably below that of reasonably competent counsel, thereby depriving him of an otherwise available defense, Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and, consequently, that justice may not have been done. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). Here, where counsel was allegedly deficient in failing to advise the defendant about an appeal, the defendant was first required to show that counsel in fact failed to consult with him about an appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). The defendant was then required to establish that "counsel ha[d] a constitutionally imposed duty to consult with the defendant about an appeal" because there was "reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Ibid. Finally, the defendant was also required to "demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id. at 484.
The thrust of the defendant's argument is that had he been properly informed of his right to appeal, he would have done so because his appeal likely would have been pending on June 25, 2009, the date on which the United States Supreme Court issued its decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (Melendez-Diaz). In that case, the Court determined, contrary to our case law, that the admission of a drug certificate unaccompanied by the testimony of the chemist who prepared it violated the Sixth Amendment. The defendant also claims that given the legal landscape created by Melendez-Diaz, his convictions would have been reversed.
To support his claim, the defendant submitted his own affidavit and an affidavit from appellate counsel. In his affidavit, the defendant averred that (1) trial counsel did not advise him of his right to appeal or discuss the possibility of an appeal and made no contact with the defendant following his sentencing and commitment to a house of correction, (2) had he known of his appellate rights or that Melendez-Diaz was pending, he would have "certainly appealed," and (3) his erroneous belief that he would be required to pay for counsel on appeal -- which also stemmed from counsel's deficient advice -- persuaded him not to file an appeal. The affidavit submitted by appellate counsel sets forth counsel's research on the question whether the defendant would have benefited from the Melendez-Diaz decision in a direct appeal. According to counsel, had the defendant filed a timely appeal, that appeal would have been pending on June 25, 2009.
The affidavit states (1) the Appeals Court decided fifteen "Melendez-Diaz cases" between July 1, 2009, and November 1, 2009; (2) ten of those cases were docketed in the Appeals Court prior to the defendant's trial; (3) four of those cases were docketed between July, 2008, and early September, 2008; (4) the final such case was docketed in October, 2008; and (5) the majority of defendants whose cases involved Melendez-Diaz arguments and which were decided from December 1, 2008, through June 25, 2009, were docketed prior to July, 2008, and received the benefit of Melendez-Diaz on further appellate review. Counsel also observed that it typically takes several months to assemble the appellate record such that a case is ready to be docketed.
Even if we were to assume that the defendant's direct appeal would have been pending when Melendez-Diaz was announced, (and further, that the introduction of the certificates at issue was not harmless beyond a reasonable doubt) we cannot say that the denial of the defendant's motion for a new trial was an abuse of discretion, because the defendant has not met his burden of demonstrating that he was not informed of his right to appeal. Although the judge made no findings of fact (a practice we do not condone), it is implicit in his denial of the new trial motion that he did not credit the defendant's claims. See Commonwealth v. Furr, 454 Mass. 101, 109 (2009). Moreover, we agree with the Commonwealth that the defendant's affidavit indicates that he was aware of his right to appeal. In addition, although we have no transcript of the proceedings, we can be reasonably confident that the defendant was informed of his right to appeal, and to have an attorney appointed to represent him if he could not afford one, by the judge at the time his sentence was imposed. See Commonwealth v. Grant, 426 Mass. 667, 672-673 (1998) (presumption of regularity defeats defendant's claim that he was unaware of appeal right where claim not substantiated by reliable and credible proof).
In so concluding, we do not hold the absence of an affidavit from trial counsel against the defendant. See Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551 (2014) (recognizing that defendant's failure to produce affidavit from trial counsel need not always give rise to adverse inference, and requiring evidentiary hearing where judge's decision was informed by defendant's failure to provide such an affidavit). Nor are we persuaded that trial counsel's public reprimand by the Board of Bar Overseers in a different case, albeit one that appears to present similar circumstances, is sufficient to carry the defendant's burden.
The defendant next claims that even if he cannot show counsel was ineffective, he should receive the benefit of Melendez-Diaz on collateral review because his convictions were not final at the time the new rule was announced. However, this argument is based on the assumption that the defendant could have received an enlargement of one year to file a notice of appeal under Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). While it is true that, with an extension of one year, the defendant's notice of appeal could have been filed as late as July 3, 2009, about one week after Melendez-Diaz was issued, Mass.R.A.P. 14(b) requires a defendant to show "good cause" before an enlargement of time will be granted. In any event, even assuming without deciding that the defendant's convictions were not final, we cannot assess whether the introduction of the certificates of drug and ballistic analysis warrants a new trial because we have no transcript of the trial. Where, as here, "through no fault of the Commonwealth, the passage of time has destroyed" the record of the trial, "the defendant rather than the Commonwealth must bear the consequences." Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 637 (2001). The defendant has not filed a motion to reconstruct the record, and we are therefore unable to determine whether or not the error was harmless beyond a reasonable doubt.
We note that, based on the record before us, we see no basis for finding that the error was not harmless. It appears from the defendant's affidavit that he made no challenge to the assertion that the substance recovered from his person was cocaine and that the weapon at issue was a firearm. Indeed, according to the defendant, at trial he claimed that the cocaine was for his personal use and maintained that he never possessed the firearm in the first instance. Thus, there was no live issue at trial as to whether the substance was cocaine or whether the firearm was operable.
The defendant also contends that it was error for the judge to deny his motion for new trial without holding an evidentiary hearing. "An evidentiary hearing is required if the motion and affidavits raise a substantial issue. Whether a substantial issue has been raised depends on the seriousness of the issue and the adequacy of the defendant's showing." Commonwealth v. Britto, 433 Mass. 596, 608 (2001) (citations omitted). "The decision whether to hold an evidentiary hearing is committed to the discretion of the motion judge, and we review that decision for an abuse of discretion." Commonwealth v. Denis, 442 Mass. 617, 628 (2004). We discern no abuse of the judge's discretion.
Order denying motion for new trial affirmed.
By the Court (Trainor, Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 5, 2015.