COMMONWEALTH v. CARPENO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a mistrial on an indictment charging murder in the first degree, the defendant, Randall Carpeno, Jr., pleaded guilty to manslaughter pursuant to G. L. c. 265, § 13, in June, 2012. Five years later, he filed a motion to withdraw his guilty plea and for a new trial. He claimed that his plea was not voluntary or intelligent, that there were insufficient facts to establish the elements of manslaughter, and that plea counsel was ineffective. The motion judge, who was also the trial and plea judge, denied the motion without a hearing. The defendant appeals, claiming that the judge abused his discretion when he denied the motion. We affirm.

Background. In 2009, the defendant moved from his home in Texas to Massachusetts to live with and assist his aunt, April Mackie. Mackie was fifty-six years of age, blind, and had multiple health issues. On March 22, 2009, Texas police notified Massachusetts authorities that the defendant had informed a friend that he had killed his aunt. The police conducted a wellness check at Mackie's apartment, and the defendant informed them that Mackie had gone to Providence. The police entered Mackie's home but did not see signs of a struggle.

The following day, the police conducted a second wellness check. Again, they did not notice anything in the apartment, and the defendant stated that Mackie would return soon. That evening, the police conducted a third check, during which they observed stains near a closet door. Mackie's body was discovered inside that closet; there were bloodstains in the area. An autopsy showed that Mackie had been stabbed approximately ten times in the chest and abdomen, that she suffered trauma to the face and head, and that she had wounds on her wrists and hands.

During the investigation, the defendant stated that Mackie had “come at him with a knife and he stabbed her.” At trial, evidence was presented that a month before this incident, Mackie had “put a knife to a social worker” and that she had made various threats.

The defendant was tried in March of 2012. The Commonwealth proceeded on theories of deliberate premeditation and extreme atrocity and cruelty. The jury were instructed on murder in the first and second degree and on voluntary manslaughter. The defense at trial was that the defendant acted in excessive self-defense, sudden provocation, or sudden combat. The jury were unable to reach a unanimous decision, and the judge declared a mistrial.

On June 1, 2012, the defendant pleaded guilty to manslaughter and was sentenced to an agreed-upon disposition of sixteen-to-eighteen years in State prison. In 2017, the defendant filed a motion to withdraw his plea and for a new trial that was denied without a hearing.

1. Standard of review. “A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).” Commonwealth v. Furr, 454 Mass. 101, 106 (2009). We review the denial of a motion for new trial “to determine whether the judge abused [his or her] discretion or committed a significant error of law.” Commonwealth v. Resende, 475 Mass. 1, 12 (2016). “A reviewing court extends special deference to the action of a motion judge who was also the trial judge.” Commonwealth v. Moffat, 478 Mass. 292, 299 (2017), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). The defendant bears the burden of proof on a motion for new trial. Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 44 (2015).

2. Intelligent plea. The defendant argues that he was not informed whether he was pleading guilty to voluntary or involuntary manslaughter, or the elements of either, and therefore his plea was not intelligently given.² “[A]n intelligent admission of guilt [requires] (1) an explanation by the judge of the elements of the crime; (2) a representation that counsel has explained to the defendant the elements [he] admits by [his] plea; or (3) the defendant's admission to facts that constitute the unexplained elements.” Commonwealth v. Hunt, 73 Mass. App. Ct. 616, 621 (2009). An intelligent plea also requires that the “defendant must ․ understand the constitutional rights [he] would have enjoyed at trial that [he] is forgoing by pleading guilty ․ [and also] must be made with a ‘sufficient awareness of the relevant circumstances and likely consequences.’ ” Id., quoting Brady v. United States, 397 U.S. 742, 748 (1970).

Here, the judge extensively questioned the defendant, under oath. He asked the defendant if his attorney “explained the nature and elements of [the] indictment [as amended to manslaughter] to [him] and the possible consequences” and the defendant answered, “Yes.” The defendant also stated that he understood the amended indictment. The judge then asked the defendant's counsel if he had “explained to [his] client each of the elements for the crime to which he is pleading guilty,” and the attorney answered, “I have.” Indeed, trial counsel, who was also plea counsel, sent a detailed letter to the defendant memorializing their conversation concerning the plea offer. It explicitly states that the trial strategy was to argue that the defendant was guilty of “[m]anslaughter due to sudden combat, sudden provocation, or excessive self defense.” The defendant signed the letter acknowledging that he understood the benefits of the plea offer and the rights he was giving up.

During the plea colloquy, the judge asked the defendant about any medications and health conditions he had, and whether they impacted his “ability to understand and appreciate what's happening here in court[.]” The defendant stated that they did not. The judge asked whether the medications the defendant was currently taking “help make [his] mind clearer and think more clearly” and the defendant responded, “Yes. Yes.” The judge also asked the defendant if he had enough time to “fully discuss” with his counsel his case, his rights, his defenses, and the possible consequences of pleading guilty, and he stated that he did. Indeed, when asked if he was pleading guilty because he was in fact guilty, the defendant responded, “Yes, sir.”

In ruling on the motion, the judge reasoned that (1) the Commonwealth had pursued the murder in the first degree charge at trial on the theories of deliberate premeditation and extreme atrocity or cruelty; (2) the defense had sought to persuade the jury to return a verdict of the lesser included offense of voluntary manslaughter; (3) the jury were instructed on murder in the first and second degree and on voluntary manslaughter; and (4) at no time was a theory of involuntary manslaughter raised, instructed, or supported by the evidence. The defendant was present throughout the trial, including when the elements of manslaughter were explained to the jury. The judge was permitted to consider the trial proceedings as well as the plea colloquy in concluding that the defendant intelligently understood the offense to which he was pleading guilty. See Commonwealth v. Jenner, 24 Mass. App. Ct. 763, 766 (1987).

3. Factual basis. Next, the defendant contends that the evidence presented by the Commonwealth was insufficient to sustain a conviction under either theory of manslaughter because it did not prove each element beyond a reasonable doubt. However, the Commonwealth's “recitation of the facts need not establish each element of the crime beyond a reasonable doubt; [r]ather, a plea judge need determine only whether the evidence which he had heard, plus any information he has obtained in the plea hearing, is sufficient, when considered with reasonable inferences which may be drawn therefrom, to support the charge to which the defendant is offering a plea of guilty” (quotations and citation omitted). Commonwealth v. Bolton, 92 Mass. App. Ct. 469, 475 (2017).

Here, the facts the Commonwealth recited at the plea hearing included that the defendant had stabbed Mackie, who was blind, approximately ten times after she “[came] at him with a knife”; and that he left her body in a closet and told police, during multiple wellness checks, that his aunt was away and would return soon. As found by the judge, there was no evidence to support a theory of involuntary manslaughter. As the defendant admitted, he stabbed the victim over ten times. That the victim may have initiated the altercation does not change the analysis. There was a sufficient factual basis to satisfy the elements of voluntary manslaughter. See Jenner, 24 Mass. App. Ct. at 766. See also Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006).

4. Ineffective assistance of counsel. Finally, the defendant argues that his plea counsel was ineffective. Generally, to prevail on a claim of ineffective assistance of counsel a defendant must demonstrate that, but for his counsel's “serious incompetence, inefficiency, or inattention,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), “the result of the proceeding would have been different.” Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), quoting Strickland v. Washington, 466 U.S. 668, 694 (1984). Where a defendant asserts that he should not have pleaded guilty, the burden is on the defendant to “establish[ ] that ‘there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Commonwealth v. Clarke, 460 Mass. 30, 47 (2011), quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Here, plea counsel informed the defendant that the agreed-upon sentence was lower than the possible life sentence that would be imposed if he were convicted of murder. At the plea colloquy, the defendant testified under oath that his counsel had fully explained to him the nature of that to which he was pleading, the possible consequences, his options, and the rights he was giving up by entering into a plea agreement. In response to the judge's question, the defendant stated that he believed his counsel had acted in his best interests, and that he had a full opportunity to consult with his counsel.

The defendant's own statements at the plea hearing belie his argument on appeal. See Clarke, 460 Mass. at 47. A tactical decision to plead guilty rather than insist on a retrial does not equate to ineffective assistance of counsel. Commonwealth v. LaCava, 438 Mass. 708, 713 (2003). The judge was under no obligation to accept the defendant's self-serving affidavit. Commonwealth v. Torres, 469 Mass. 398, 403 (2014). It was also proper for him to consider the lack of a supporting affidavit from his plea counsel. Commonwealth v. Savage, 51 Mass. App. Ct. 500, 505 n.6 (2001). There was no error.

Order denying motion to withdraw guilty plea and for new trial affirmed.

FOOTNOTES

2.   A guilty plea must be both voluntary and intelligent. Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 637-638 (2007). The defendant conceded at oral argument that his plea was voluntary.