Opinion
20-P-165
11-18-2020
COMMONWEALTH v. GEORGE WAUGH.
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
The defendant, George Waugh, appeals from the denial of his motion to vacate an order of probation revocation pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). He contends that his attorney at the probation revocation hearing rendered ineffective assistance of counsel by failing to present, through a forensic psychiatrist, evidence that his probation violations stemmed from mental illness, and thus "should have been excused." We affirm.
A motion to vacate an order of probation revocation may be brought pursuant to rule 30 (b). See Commonwealth v. Patton, 458 Mass. 119, 120, 129 (2010).
Background. In 2011, the defendant pleaded guilty to three counts of rape of a child and two counts of indecent assault and battery. He received a sentence of two to three years in State prison and five years of probation from and after his release from incarceration. The terms of his probation included the following conditions: complete a halfway house program; complete a batterer's program; obtain sex offender treatment; supervised GPS monitoring; register as a sex offender; and no contact with the victim or her family. On January 6, 2014, the defendant filed a motion to vacate the remainder of his sentence. A Superior Court judge denied the motion. The defendant served his State prison sentence and in or around May of 2014 began serving his term of probation.
Later in 2014, the probation department alleged that the defendant failed to comply with his probation conditions by failing to comply with the halfway house requirement, failing to attended batterer's treatment, and failing to attend sex offender treatment. On October 17, 2014, following an evidentiary hearing, a Superior Court judge found the defendant in violation of his probation and sentenced him to serve three to four years in State prison, followed by three years of probation from and after his release from incarceration.
The defendant's State prison sentence was to be served concurrently with a different term of incarceration that was imposed on a case from Taunton District Court.
The record reflects that the defendant violated additional terms of probation, in the present case and in other cases, multiple times.
Discussion. Rule 30 (b) motions are committed to the sound discretion of the judge, Commonwealth v. Moore, 408 Mass. 117, 125 (1990), and "are granted only in extraordinary circumstances." Commonwealth v. Comita, 441 Mass. 86, 93 (2004). "A judge may make the ruling based solely on the affidavits and must hold an evidentiary hearing only if the affidavits or the motion itself raises a 'substantial issue' that is supported by a 'substantial evidentiary showing.'" Commonwealth v. Scott, 467 Mass. 336, 344 (2014), quoting Commonwealth v. Stewart, 383 Mass. 253, 260 (1981). We give "substantial deference" where, as here, the motion judge was also the plea judge. See Commonwealth v. Lys, 481 Mass. 1, 4 (2018), quoting Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016).
Where, as here, a rule 30 (b) motion is based on ineffective assistance of counsel, the defendant must also establish that "there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer" and that, as a result, he was "likely deprived . . . of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Millien, 474 Mass. 417, 432 (2016) (prejudice standard under second prong of Saferian test met when reviewing court has "serious doubt whether the jury verdict would have been the same had the defense been presented"). See also Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978) ("[A]rguably reasoned tactical or strategic judgments" do not amount to ineffective assistance of counsel unless they are "manifestly unreasonable" when made).
Here, the judge determined that "revocation counsel did provide effective assistance" because: the probation violations "w[ere] not disputed and could not reasonably have been contested"; the judge "was essentially aware of the defendant's mental health issues (attention deficit disorder and bipolar condition) from the defendant and his counsel"; and "[t]here was nothing unreasonable about . . . revocation counsel's tactical decision to seek to persuade this [c]ourt to reprobate the defendant." The record supports the judge's determination. The record is replete with information before the judge regarding the defendant's mental health issues, and their purported impact on his ability to comply with probation terms and conditions. During the plea colloquy, the defendant told the judge that he had been treated for "ADHD [Attention-Deficit Hyperactivity Disorder] and [was] allegedly bi-polar," received medication for "some type of schizophrenia" during high school, and suffered from severe depression. Plea counsel confirmed that the defendant suffered from ADHD, had been on medication for ADHD, and described the ways in which ADHD impacted the defendant and his decision making. At the probation revocation hearing, defense counsel reiterated that the defendant suffered from attention deficit disorder, and, at the September 24, 2015 hearing on the defendant's motion for reconsideration, he again raised the defendant's mental health issues.
In addition, the judge had the opportunity to observe the defendant's conduct at the various hearings and review the probation department case summary, which contained further information regarding the defendant's mental health issues. Equipped with this background, the revocation judge, who was also the plea judge, was in the best position to evaluate and consider the substance of the defendant's claim. See Lys, 481 Mass. at 4. The judge did just that. He found that the proposed expert's report was "substantially undisputed" and, upon consideration of the expert's proffer and supporting documents, concluded that they provided no added information that would have impacted his decisions to find the defendant in violation of his probation and sentence him to a term of incarceration. Moreover, the record supports the judge's conclusion that insofar as the probation violations were clear, revocation counsel's tactical approach at the probation revocation hearing was neither manifestly unreasonable nor constituted ineffective assistance. See Commonwealth v. Bowen, 92 Mass. App. Ct. 793, 799 (2018). Accordingly, on the record before us, we cannot say that the judge abused his substantial discretion in denying the motion to vacate the order of probation revocation.
Order denying motion to vacate probation revocation affirmed.
By the Court (Wolohojian, Neyman & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 18, 2020.