Opinion
20-P-171
11-23-2020
COMMONWEALTH v. EDDIE A. SOTO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
This is the defendant's appeal from the allowance of the Commonwealth's motion to reconsider a judge's allowance of the defendant's motion to vacate his 2013 guilty pleas to narcotics-related offenses. On appeal, he claims the District Court judge abused her discretion by allowing the Commonwealth's motion for reconsideration, and that he received ineffective assistance of counsel. We affirm.
On November 13, 2013, the defendant pleaded guilty to possession with intent to distribute heroin (count one), to committing that offense in a school zone (count two), and to possession with intent to distribute cocaine (count three). A judge accepted the defendant's pleas and sentenced him on counts one and three, to concurrent terms of one day in the house of correction. On count two, the defendant was sentenced to the mandatory minimum term of two years in the house of correction, to run from and after the sentence imposed on count one.
That same day, the Commonwealth nolle prossed counts four (second school zone charge) and five (conspiracy to violate the drug laws).
In January of 2014, a nonevidentiary hearing was held on the defendant's motion to vacate the guilty pleas. At the hearing, the Commonwealth assented to the motion as far as it concerned count two, the school zone violation, and requested the defendant be resentenced on counts one and three. By agreement, the defendant was resentenced on those counts to concurrent terms of 690 days in the house of correction, deemed served. The parties also agreed that count two, the school zone violation, should be dismissed.
Despite a writ of habeas corpus being issued to the defendant's place of incarceration, the defendant was not transported to the court house. Defendant's counsel asked that the defendant's presence be waived due to the fact that, based upon the agreement of the parties, the defendant would be resentenced to a term deemed served and would be released that day.
In June of 2018, the defendant filed a motion, claiming that the docket did not correctly reflect what occurred at the January 2014 hearing. Specifically, the defendant claimed that the record should be "corrected" to show that convictions on counts one, two, and three were all vacated. That motion was denied.
In September 2018, the defendant filed a second motion to vacate his guilty pleas. In August 2019, after a hearing, the motion was allowed. Within a few weeks, the Commonwealth moved for reconsideration of the allowed motion. After a hearing, the motion to reconsider was allowed, and the judge reinstated the defendant's one-day sentences on counts one and three. This appeal followed.
1. The motion to vacate. The defendant claims that his guilty pleas should have been vacated because he did not have a full understanding of the "interdependent charges," and his agreement with the Commonwealth was based on a "mutual mistake" as to the consequences of the charge. We disagree.
What underlies the defendant's claim is the Supreme Judicial Court's decision in Commonwealth v. Bradley, 466 Mass. 551 (2013), which held that that the legislative amendment to the school zone statute, which reduced the necessary distance from the school from 1,000 to 300 feet, "applies to all cases alleging a school zone violation for which a guilty plea had not been accepted or conviction entered as of August 2, 2012." Id. at 561. See St. 2012, c. 192, § 30, amending G. L. c. 94C, § 32J. In light of Bradley, the amended school zone applied to the defendant's case.
However, contrary to the defendant's claim, and assuming the contract principle of mutual mistake applies to guilty pleas, there was no mutual mistake. Bradley, decided two weeks after the defendant pleaded guilty, represented a change in the law. That neither party predicted the outcome in Bradley was not a mutual mistake. Importantly, the defendant was represented by counsel, he has made no claim that the plea colloquy was inadequate, and the record discloses his familiarity with the criminal justice system. See Commonwealth v. Furr, 454 Mass. 101, 109 (2009); Commonwealth v. Russell, 37 Mass. App. Ct. 152, 157 (1994). In the end, the defendant cannot establish prejudice because his conviction for the school zone violation was vacated.
2. The motion to reconsider. The defendant also claims the judge abused her discretion by allowing the Commonwealth's motion to reconsider because it was not based on "(1) a change in circumstances 'such as (a) newly discovered evidence or information, or (b) a development of relevant law; or (2) a particular and demonstrable error in the original ruling or decision.'" Commonwealth v. Demirtshyan, 87 Mass. App. Ct. 737, 741 n.8 (2015), quoting Audubon Hill S. Condominium Ass'n v. Community Ass'n Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 470 (2012). Even assuming motions to reconsider are so limited, as the Commonwealth properly notes, subsection (2) applies in these circumstances.
Here, the parties agreed that the January 31, 2014, resentencing was improper because it increased the defendant's one-day sentences (which he had served) to 690 days. See Commonwealth v. Scott, 86 Mass. App. Ct. 812, 815 (2015); Aldoupolis v. Commonwealth, 386 Mass. 260, 272 (1982). However, the parties disagreed about the remedy for this error. Although the remedies found in Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016), were not available for timing reasons, nor under Mass. R. Crim. P. 30 (a), 435 Mass. 1501 (2001), for custodial reasons, did not mean (as the defendant contends) that the only remedy available was to vacate the defendant's convictions. This is especially true because the defendant did not raise any claim that his plea was not voluntary and intelligent, which if he had, would have made Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), the proper procedural avenue. See Furr, 454 Mass. at 106; Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 39 (2015). When the judge adopted the defendant's vacation claim, she made a demonstrable error of law, which made the Commonwealth's motion to reconsider an appropriate vehicle to rectify that error.
For purpose of clarity, we also note that the judge did not abuse her discretion by allowing the motion for reconsideration and correcting her error. Because the defendant had already served his sentence, the court lacked jurisdiction to resentence him, rendering the new sentence void. See Commonwealth v. McNulty, 42 Mass. App. Ct. 955, 956 (1997). In that posture, the judge had the authority to correct the docket and restore the original sentence. See Commonwealth v. Boe, 456 Mass. 337, 348 (2010).
3. Ineffective assistance of counsel. The defendant claims he received ineffective assistance of counsel because (1) counsel did not seek to "vacate the interrelated pleas," and agreed to an illegal resentencing involving a substantial increase in the sentences to counts one and three, which had already been served, and (2) counsel acted without the defendant's informed consent when waiving his presence at the hearing. Even though the Commonwealth concedes that resentencing the defendant and doing so without the defendant being present was improper, on this record, the defendant has failed to establish that his attorney was ineffective under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The defendant raises this claim on direct appeal, which is the weakest posture for such a claim and is "strongly disfavored." Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). See Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573-574 (2007).
A. Vacating the guilty pleas. The defendant finds fault in his counsel for failing to vacate his guilty pleas after there was no longer a factual basis to support the school zone violation. We disagree, as there was no basis to vacate the defendant's convictions on counts one and three.
The defendant also claims that his counsel should have moved to dismiss the school zone charge for lack of probable cause. The claim is without effect as the school zone plea was vacated by agreement of the parties.
Relying on Commonwealth v. Walters, 479 Mass. 277 (2018), the defendant claims that the dependent relationship of the defendant's 2013 plea required that counts one and three be vacated. In Walters, the defendant was convicted by a jury of six counts, one of which was vacated by the Supreme Judicial Court due to insufficient evidence, and the defendant was resentenced. Id. at 277-278. The court held that the judge "had discretion to determine the resentencing structure as long as she did not add additional time to the original, lawfully imposed sentence." Id. at 284. Here, the judge erred in adding time to a sentence the defendant had served, but the judge had no basis to vacate counts one and three. However, the defendant suffered no prejudice as this error was corrected, and the original one-day sentences were restored.
The same is true as it relates to the claim of ineffective assistance of counsel for agreeing to the illegal resentencing.
In any event, given the Commonwealth's evidence supporting counts one and three, as well as the defendant's criminal record, even if these counts had been vacated, there is no likelihood that the defendant would have been able to obtain a more favorable disposition at a new trial than the one day sentences he received on those counts. The defendant has failed to establish that that "better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
B. Resentencing without the defendant's presence. The defendant also claims that counsel was ineffective for negotiating the resentencing agreement without his informed consent and presence. Although, as the Commonwealth properly concedes, it was improper to resentence the defendant, and to do so without his presence, see Commonwealth v. Scott, 86 Mass. App. Ct. 812, 815 (2015); Mass. R. Crim. P. 18 (a), 378 Mass. 887 (1979), again, the defendant cannot establish ineffective assistance under the second prong of Saferian. Similar to the failure to vacate claim, the defendant suffered no prejudice, as this resentencing error was corrected and the original one-day sentences were restored.
Order allowing motion to reconsider affirmed.
By the Court (Vuono, Meade & Blake, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 23, 2020.