Opinion
13-P-755
09-01-2015
COMMONWEALTH v. THOMAS P. VON SCHULTZE.
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
The defendant was convicted of carrying a firearm without a license. A judge of the Superior Court denied, without an evidentiary hearing, the defendant's motion for postconviction relief, claiming ineffective assistance of counsel. In this consolidated appeal, the defendant argues that his lawyer, who was new to the case, unsoundly rejected a misdemeanor plea bargain and advised him to proceed to trial on the felony firearm charge, to which trial counsel offered no defense. The Commonwealth responds that the defendant's plea decision was informed and voluntary and made in an attempt to avoid collateral consequences of a conviction. For the following reasons, we affirm the judgment but vacate the order denying the motion for postconviction relief and remand for further proceedings including an evidentiary hearing on the motion.
Background. On October 25, 2010, the defendant appeared on a scheduled trial date. The prosecutor and prior appointed counsel had agreed that the defendant would offer a guilty plea to reduced charges at that time. Instead, new defense counsel appeared and informed the judge and the prosecutor that the defendant would reject the plea offer and ask for a trial.
Prior to her appearance, the defendant had spoken only briefly to new counsel, but had not personally met her; she informed the court that she also was handling "the leg of the family court case" for the defendant and that another member of her law firm, who was not available to appear that day, would be handling the criminal trial.
New defense counsel asserted that the defendant wanted to proceed to trial unless the Commonwealth could "do any better than this 60 days," the plea term secured by predecessor counsel. The prosecutor responded that due to the fact that she and predecessor counsel had "worked long and hard to convince [her] office to reduce [the defendant's sentence] from 18 months down to 60 days . . . [she was] confident . . . that there is no way [she was] going to be able to offer anything less than the 60 days."
Counsel explained that, if the defendant were to be convicted, either by guilty plea or jury, the Department of Children and Families would not place with him his estranged twelve year old son -- which was necessary to "save" the child from an abusive stepfather. The prosecutor responded that she was not ready for trial at that time because she had "worked out a breakdown of the charges and a plea" with predecessor counsel and, therefore, had not brought witnesses for trial. The prosecutor (and predecessor counsel) had intended for the case to be resolved that day by guilty plea, and she "didn't want to see the 18 months be imposed" on the defendant for this charge. Before the new trial date was chosen, the prosecutor reiterated her understanding that the defendant was rejecting the negotiated plea and made clear that the offer was "not going to be on the table come the trial date." New defense counsel confirmed her understanding of the circumstances, stating that "[i]f [the defendant] takes that 60 days that child is gone." On the judge's query directly to the defendant, he indicated he understood the "plea negotiations that have taken place and so forth, and [that] they're off the table if the case proceeds to trial."
Defense counsel stated that she also was aware that the defendant's motion to suppress had been denied, and that neither discovery nor pretrial conferences would be redone as a result of her late-filed appearance.
On November 15, 2011, after a two-day trial where he was represented by another attorney in new counsel's firm, the defendant was convicted by a jury of the felony of carrying a firearm without a license. The trial judge sentenced him to the mandatory minimum of eighteen months in a house of correction. The defendant's motion for postconviction relief, in which he sought to have the conviction vacated and to receive the previously offered plea bargain, see Lafler v. Cooper, 132 S. Ct. 1376, 1388-1390 (2012), was denied without a hearing in a brief margin endorsement.
At the start of trial, the Commonwealth entered a nolle prosequi on the charges of leaving a firearm in a vehicle, unlawful possession of ammunition, and threat to commit a crime.
In support of his motion, the defendant filed his own affidavit, as well as an affidavit by appellate counsel. In his affidavit, the defendant stated that he had not understood that the felony firearm charge would have been reduced to a misdemeanor as part of the plea offer. He averred that at the time he rejected the plea, counsel had told him that tendering the offered plea would result in a felony conviction. The defendant also stated that he "would have absolutely taken the plea offer from the Commonwealth if [he had known] it meant no felony conviction for [him]." In addition, his affidavit recited, "My second attorney told my family and me that I had a good case, and a great chance to win my case at trial because the Commonwealth would have to prove I did not have a firearm license in New Hampshire. If they couldn't prove that, my attorney told me, I would not be found guilty."
That statement is corroborated by the fact that, at trial, trial counsel presented no evidence, resting the defendant's case immediately after the Commonwealth rested. Afterwards, he argued to the judge that he had presented evidence that the defendant was licensed when he elicited on cross-examination of the State police officer the fact that the defendant had told him that he had a New Hampshire firearm license. Counsel maintained that the statement had been sufficient to raise an affirmative defense of licensure and thereby shift the burden of disproving that defense back to the Commonwealth. The judge made it clear that he was going to instruct the jury that the Commonwealth did not have to prove that the defendant was unlicensed. Even though counsel apparently understood that, given that, essentially correct, view of the law and the evidence, he had offered no real defense, he did not object or seek to reopen the defendant's case.
In fact, counsel responded to the judge, "But in reading [Commonwealth v. Jones, 372 Mass. 403 (1977),] and the Supreme Court cases, under the due process issue, isn't that, in effect, at least in that element directing the case out in favor of the Commonwealth?"
Appellate counsel stated in her affidavit that after several attempts to contact the lawyer who rejected the plea, she was advised that the lawyer "would not provide an affidavit as to the reasons [the defendant] could not take the plea deal." Appellate counsel further attested that trial counsel (from the same firm) "initially indicated his willingness to appear on behalf of" the defendant at an evidentiary hearing, but then in a subsequent letter advised appellate counsel that "even with a written waiver of attorney client privilege, [trial counsel] would need 'more detail' to 'decide whether it is appropriate to provide an affidavit.'"
Discussion. As an initial matter we must reject the defendant's direct appeal, wherein he raises only the ineffective assistance issues, which in this case are appropriately explored only through the postconviction proceedings. In our view this is not an appeal where the full factual basis for an ineffective assistance of counsel claim appears indisputably on the trial record. See Commonwealth v. Sepheus, 468 Mass. 160, 171 (2014).
As to the postconviction motion, "[t]he trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done." Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). "The decision whether to hold an evidentiary hearing on a motion for a new trial is 'left largely to the sound discretion of the judge.' Commonwealth v. Stewart, 383 Mass. 253, 257, 259 (1981). An evidentiary hearing is required only where a 'substantial issue' has been raised. 'In determining whether a "substantial issue" meriting an evidentiary hearing . . . has been raised, we look not only at the seriousness of the issue asserted, but also to the adequacy of the defendant's showing on the issue raised.' Id. at 257-258." Commonwealth v. Chatman, 466 Mass. 327, 334 (2013).
"It is beyond dispute that a defendant's decision whether to plead guilty or proceed to a trial is a critical stage in a criminal proceeding for which he is constitutionally entitled to the effective assistance of counsel." Commonwealth v. Mahar, 442 Mass. 11, 14 (2004). "That right plainly includes counsel's effective assistance in connection with the defendant's decision whether to accept or reject a plea bargain offer made by the Commonwealth." Ibid. "[I]f the offer is rejected because of the ineffective assistance of counsel, the fact that the defendant subsequently receives a fair trial does not ameliorate the constitutional harm that occurred in the plea consideration process." Id. at 14-15.
After a review of all of the circumstances of this case, we conclude that the defendant has met his burden of raising in his motion a substantial issue requiring an evidentiary hearing on the issue whether the performance of either plea rejection counsel or trial counsel fell "below that which might be expected from an ordinary fallible lawyer" and deprived the defendant "of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Hardy, 464 Mass. 660, 662-663 (2013). If there is a reasonable strategic or other justification for their actions, it is not obvious on the record before us. Without that showing, it appears quite plausible that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Commonwealth v. Mahar, supra at 15. It is our conclusion that an evidentiary hearing is required to get to the heart of the matter.
The judgment is affirmed. The order denying the motion for postconviction relief is vacated, and the matter is remanded for further proceedings on that motion consistent with this memorandum and order.
So ordered.
By the Court (Cohen, Hanlon & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 1, 2015.