Opinion
No. 11–P–1596.
2012-07-31
COMMONWEALTH v. Carlos E. URDAY.
By the Court (CYPHER, HANLON & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On August 28, 2006, in the District Court, the defendant admitted to facts sufficient to support a finding of guilty on a charge of assault on his wife by means of a dangerous weapon, a knife.
In August, 2010, the defendant moved to withdraw his admission, alleging ineffective assistance of counsel because his lawyer had not investigated whether the defendant's wife would have invoked her spousal privilege not to testify against him. A second District Court judge denied the motion. After the defendant filed a motion for reconsideration, the second judge held a hearing and denied the motion. The defendant appeals and we affirm.
The defendant's case was continued without a finding pending a one-year period of probation. As a condition of probation, he was ordered to pay court-ordered child support and to comply with “any restraining orders.”
In support of his claim of ineffective assistance, the defendant submitted three affidavits. In his own affidavit, he stated that he would not have pleaded guilty had his attorney informed him that his wife could assert a spousal privilege and refuse to testify against him. The defendant stated that his wife, “[t]he alleged victim,” and he “were the only two present during the alleged offense. At the time, our daughter was upstairs in her bedroom.” He also acknowledged that he told the police he was angry at his wife and that he “told her ‘I'll cut your throat.’ “ He then speculated that, without his wife's testimony as the only eyewitness, the Commonwealth would not have been able to prove the felony charge of assault by means of a dangerous weapon against him, but only a misdemeanor charge of threats. The defendant's affidavit does not mention other evidence potentially available to the Commonwealth. We have only a police report; however that report reveals that there was a 911 audiotape, the result of a telephone call made by the victim and the daughter, who had “locked themselves in an upstairs room and called 911”; a large kitchen knife given to police by the victim; and evidence that the defendant was extremely aggressive toward the police when they arrived.
In addition, there is no affidavit from the adult daughter; even if she was not present in the room at the time of the assault, it is likely that she was a potential witness to some part of the incident, if only to her mother's excited utterance when the two locked themselves in an upstairs room. Even now, the defendant does not dispute the facts of the case or claim that he was coerced into admitting to sufficient facts for something he did not do.
After he yelled and swung an arm at a police officer, the defendant was subdued with pepper spray, and handcuffed.
The defendant also submitted affidavits from the victim and from trial counsel. In her affidavit, dated April 7, 2010, the victim stated that she and her husband had since “reconciled [their] differences,” and that had she been informed of her spousal privilege at the time of the defendant's admission, she would have refused to testify against him. She stated that she told the police her “version of the incident,” and “[t]here were no other witness[es] other than [her]self to the alleged offense.” Significantly, the victim did not deny the version of the incident contained in the police report and accepted by the defendant at the time of the admission.
Trial counsel's affidavit, filed with the motion for reconsideration, stated that he advised the defendant to admit to sufficient facts because he “believed that [the defendant]'s admission alone, as set forth in the police report, was sufficient to warrant a guilty finding.” He continued, “Upon further consideration and review of this matter, it appears that I should have inquired into whether the victim wished to assert her [spousal] privilege.”
None of the three affidavits acknowledges the fact that, at the time of the admission, there was an outstanding order of protection, pursuant to G.L. c. 209A, ordering the defendant to have no contact, direct or indirect, with his wife.
Nor does the defendant explain how, in advance of trial, counsel was to obtain with any certainty information about whether the victim would testify against the defendant.
A record of the restraining order, but not the order itself nor the accompanying affidavit, is attached to the Commonwealth's motion to expand the record filed in this court on April 30, 2012. That motion is allowed.
See Mass.R.Prof.C. 4.3(b), 426 Mass. 1404 (1998) (“During the course of representation of a client, a lawyer shall not give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client”).
“A judge may allow a motion to withdraw a plea only ‘if it appears that justice may not have been done.’ Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979)” Commonwealth v. Desrosier, 56 Mass.App.Ct. 348, 353–354 (2002). “A postsentence motion to withdraw a plea is treated as a motion for a new trial.” Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000). “The defendant has the burden of producing a credible reason to reverse the final decision, arrived at after trial or plea, that outweighs the risk of prejudice to the Commonwealth.” Commonwealth v. Wheeler, 52 Mass.App.Ct. 631, 637 (2001). “The judge may decide the motion based solely on the submitted affidavits, and the weight and credibility to be accorded those affidavits are within the judge's discretion.” Commonwealth v. Furr, 454 Mass. 101, 106 (2009). We review “only to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Diaz, 75 Mass.App.Ct. 347, 350 (2009), quoting from Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006).
In this case, it is fair to conclude that the second judge did not credit the defendant's affidavit, or that of his wife, filed four years after the admission to sufficient facts, and five months after the defendant received a sixty-month Federal sentence for conspiracy to violate the drug laws—a sentence counsel acknowledged at oral argument before this court was enhanced by this underlying felony conviction. Moreover, at the time of his admission, the defendant received a very favorable disposition. We are not persuaded that plea counsel could have achieved anything better for him had he acted differently. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We see no error of law, no abuse of discretion, and therefore no substantial risk of a miscarriage of justice.
Judgment affirmed.