Opinion
16-P-355
05-24-2017
COMMONWEALTH v. Jerome E. SMITH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 25, 2012, the defendant pleaded guilty to three firearm-related charges and to negligent operation of a motor vehicle. He now appeals from the denial of his motion for a new trial, wherein he sought to withdraw his guilty pleas. On appeal, he argues that the judge should have granted his pre-plea motion to discharge counsel, and that his defense counsel was ineffective in several respects. We affirm.
1. Standard of review. A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). Commonwealth v. Scott, 467 Mass. 336, 344 (2014). "The motion is addressed to the sound discretion of the judge, and the judge's disposition of the motion will not be reversed for abuse of discretion unless it is manifestly unjust, or unless the plea colloquy was infected with prejudicial constitutional error." Commonwealth v. Correa, 43 Mass. App. Ct. 714, 716 (1997) (citations omitted).
2. Waiver. As a threshold matter we observe, as did the motion judge, that the defendant's guilty pleas constituted a waiver of the defects he now claims occurred in prior proceedings. "A defendant's guilty plea, made knowingly, voluntarily and with the benefit of competent counsel, waives all nonjurisdictional defects in the proceedings prior to the entry of the guilty plea." Commonwealth v. Fanelli, 412 Mass. 497, 500 (1992). We nevertheless examine the claims raised.
3. Motion to discharge counsel. The defendant was arraigned on June 6, 2011. Later that month, he hired new, private defense counsel. On the trial date, January 25, 2012, during a pretrial hearing, the defendant informed the judge that he would like to waive his speedy trial rights and hire new counsel because he did not agree with his defense counsel's trial strategy. The judge engaged the defendant in a colloquy, heard from defense counsel and the prosecutor, and then denied the motion, informing the defendant that "[t]he reasons that you have given to the Court are not sufficient." The judge's decision was well within his discretion, where he weighed the defendant's reasons for the motion against its timing and the efficient operation of the court. See Commonwealth v. Chavis, 415 Mass. 703, 711 (1993) (a defendant's "[f]reedom to change counsel ... is restricted on the commencement of trial"); Commonwealth v. Melo, 472 Mass. 278, 304-305 (2015) (no abuse of discretion where judge engaged defendant and assessed situation before denying motion); Commonwealth v. Carsetti, 53 Mass. App. Ct. 558, 561-563 (2002). Nor did the defendant's comments about his dissatisfaction with defense counsel, or the immediacy of trial, call into question the validity of his subsequent plea, where the judge's colloquy with the defendant was clear and thorough. See generally Commonwealth v. Berrios, 447 Mass. 701, 708 (2006) ; Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 638-641 (2007).
The judge noted a shortage of judges and a substantial rearrangement of the trial schedule in order to accommodate the defendant's trial, and that it had been represented to him "that everybody was ready."
By pleading guilty, the defendant also received a reduction in the armed career criminal charge, from level three to level two, and a recommended sentence less than the mandatory minimum he would have faced had he gone to trial.
4. Ineffective assistance of counsel. The defendant claims that his defense counsel failed to communicate with him prior to the trial date, adequately investigate and interview witnesses, challenge testing results, and file a motion to suppress. We review ineffective assistance of counsel claims under the familiar Saferian standard, see Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), with reasonableness as a touchstone for counsel's decisions. See Commonwealth v. Ortega, 441 Mass. 170, 175 (2004).
Here, the charges arose from an incident wherein a 911 telephone call about gunshots fired led the police to a neighborhood in Worcester. A police cruiser investigating near the scene came upon a vehicle that fled at a high rate of speed, struck a curb, and then failed to stop when the officer signaled to do so. The driver, the defendant, committed further traffic infractions during flight and abandoned the vehicle, continuing his flight on foot. When the police eventually apprehended the defendant, they discovered a loaded firearm in his vehicle. Ballistics testing of the shell casings found at the gunshot scene matched them to the recovered firearm.
In his motion, the defendant refers to a video recording that he contends contradicts the police officer's account of the events of that night. The video does not appear in the record on appeal, and it is unclear whether it was part of the record before the trial court. Regardless, the defendant does not dispute that he exited his vehicle with his hands up, but then fled on foot from the police, subsequently jumping off a guardrail and falling forty feet to the ground below.
The defendant's motion for a new trial is limited to the questions he raises and his own self-serving affidavit, with nothing more of substance to support the claims he makes. Nowhere does he establish, by affidavit or other evidence, how the actions he claims defense counsel should have taken would have made a material difference in his decision to plead guilty or otherwise affect the outcome of his case, or how defense counsel's actions were manifestly unreasonable. For this reason alone, the claim fails. See Ortega, 441 Mass. at 178-179. Likewise, counsel was not ineffective for failing to file a motion to suppress where it would have been futile, as the defendant's flight and abandonment of the vehicle gave the police independent cause to search his vehicle. See Commonwealth v. King, 389 Mass. 233, 245 (1983) ; Commonwealth v. Comita, 441 Mass. 86, 91 (2004).
Because the defendant's motion raises no "substantial issue," the motion judge did not abuse her discretion by declining to hold an evidentiary hearing. Commonwealth v. DeVincent, 421 Mass. 64, 67 (1995) (quotation omitted).
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Order denying motion for new trial affirmed.