COMMONWEALTH v. FLORES (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In March 2000 the defendant pleaded guilty to assault and battery, intimidation of a witness, larceny, malicious destruction of property, and violation of a protective order (first plea). In December 2000 the defendant pleaded guilty to assault and battery by means of a dangerous weapon, violation of a protective order, and assault and battery (second plea). The defendant then filed multiple, unsuccessful motions to withdraw his pleas and for a new trial. In 2016, the defendant filed his latest such motion,² claiming that his first plea was coerced because of undue influence by the victim and her father, and that his counsel at the time of both pleas was ineffective for not giving adequate advice regarding the defendant's waiver of rights. A judge denied the motion without an evidentiary hearing, and the defendant appeals.

The defendant's claims fail under the doctrines of direct estoppel and waiver. He raised his coercion claim in the motion for a new trial he filed in 2012. He raised his ineffective assistance claims in at least two motions, beginning with a “motion to re-open” filed in 2004. All of the defendant's prior motions were decided against him; he is thus estopped from relitigating the issues raised therein. See Commonwealth v. Rodriguez, 443 Mass. 707, 709-710 (2005). Moreover, though the defendant's latest motion argues somewhat different grounds in support of his claims, he waived those grounds by not raising them in the earlier motions. See Commonwealth v. Randolph, 438 Mass. 290, 293 (2002).

We review waived claims to determine whether any error created a substantial risk of a miscarriage of justice. See id. at 296. The defendant argues that his failure to preserve his claims, as currently constituted, stems from the ineffective assistance provided by all of his previous motion counsel. But none of the defendant's current claims leave us with uncertainty that his pleas were both knowing and voluntary. Thus, we see no omission made by previous counsel that resulted in a substantial risk of a miscarriage of justice. See id.

Finally, the defendant contends that the 2012 motion judge was biased, that he erred by entering the directive, “No further motion for new trial is to be accepted for filing in these cases without prior review and approval by a judge[,]” and that he erred by failing to conduct an evidentiary hearing. Putting aside the total absence of evidence that the judge was biased, the defendant's arguments are not properly before us. All three arguments concern the October 26, 2012 order denying the defendant's previous motion for a new trial, from which the defendant failed to perfect an appeal. The present appeal is from an order issued by a different judge on November 29, 2016. Thus, the propriety of the October 26, 2012 order is not before us. See note 1, supra.

Order entered November 29, 2016, denying postjudgment motion affirmed.

FOOTNOTES

2.   The defendant styled this motion as one “to reconsider his motion for a new trial.” A judge's considerable discretion to reconsider prior orders exists, however, only where “the request is made within a reasonable time.” Commonwealth v. Gonsalves, 437 Mass. 1022, 1022 (2002). Here, the defendant's previous motion for a new trial was denied four years earlier, on October 26, 2012. We therefore treat the “motion to reconsider” as a successive motion for a new trial.