COMMONWEALTH v. DEW (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On June 1, 2016, the defendant, Anthony J. Dew, pleaded guilty in the Superior Court to multiple charges.² Nearly one and one-half years later, the defendant moved for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). The judge who presided at the guilty plea hearing denied the motion for a new trial without an evidentiary hearing. The primary issue on appeal is whether the judge abused her discretion in denying the motion without an evidentiary hearing. We hold that she did not and thus affirm.

Background. In 2015, the defendant was indicted on multiple counts stemming from his “organizing and running a human trafficking and drug distribution operation” out of two different apartments.³ As part of this operation, the defendant had multiple victims working for him as prostitutes. The defendant also assaulted one of his victims, hitting her against the head and holding a knife to her throat. As part of an investigation into the defendant's conduct, Boston police officers executed a search warrant on an apartment occupied by the defendant, and seized various items therein.⁴

The detailed affidavit in support of the search warrant delineated the comprehensive investigation undertaken by the police. In his affidavit, Officer Robert Charbonnier outlined his use of a confidential informant, given the pseudonym “Jet.” Officer Charbonnier wrote that Jet made three drug purchases from the defendant using money provided by the drug control unit. Officer Charbonnier field-tested the drug purchases, which tested positive for heroin. Officer Charbonnier also wrote that “[t]he heroin purchased by Jet was then forwarded to the state police laboratory for analysis.”

In October 2015, the defendant filed a “motion for information related to affiant & confidential informant,” which was denied. The defendant thereafter pleaded guilty to all of the charges except for the rape charge, which the Commonwealth dismissed. During the plea hearing, the defendant admitted to the facts set forth by the prosecutor. He acknowledged that he was conceding rights by choosing to plead guilty, that he understood the consequences of pleading guilty, and that he changed his plea by his own volition.⁵ In 2017, the defendant filed a motion for a new trial.⁶ The judge, who was also the judge at the plea hearing, denied the motion without an evidentiary hearing. The judge wrote that “the defendant's affidavit consists merely of conclusory statements accusing his trial attorney of ineffective assistance of counsel; it is devoid of specific, non-speculative allegations as to his attorney's alleged shortcomings.” The defendant appeals therefrom.

Discussion. The defendant contends that the motion judge abused her discretion by denying his motion for a new trial without an evidentiary hearing. We disagree.

We review the denial of a motion for a new trial “only to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Lys, 481 Mass. 1, 4 (2018), quoting Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015). We give “substantial deference” where the motion judge was also the plea judge. Lys, supra, quoting Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016). If the motion and affidavits fail to raise any “substantial issue,” the motion judge does not need to hold an evidentiary hearing. Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. McWilliams, 473 Mass. 606, 622 (2016). “When considering whether a motion for a new trial warrants an evidentiary hearing, the judge must look to the seriousness of the issue itself and the adequacy of the defendant's showing on that issue must be considered” (quotation and citation omitted). Id.

The defendant contends that his “newly discovered evidence” demonstrates that Officer Charbonnier lied in his search warrant affidavit. Specifically, the defendant points to letters from the legal counsel to the Massachusetts State Police Crime Laboratory, and argues that the communications “in essence categorically den[y] receipt of any drugs sent by the Boston police” during the time frame at issue in this case, thereby proving that Officer Charbonnier lied in the search warrant affidavit, and warranting a Franks hearing. See Franks v. Delaware, 438 U.S. 154, 155-156 (1978); Commonwealth v. Amral, 407 Mass. 511, 520 (1990). The defendant appears to claim that because Officer Charbonnier stated in his affidavit that the heroin purchased by the confidential informant was forwarded to the State police laboratory, the absence of an official “drug cert” proves that Officer Charbonnier lied in the affidavit. The argument is unavailing. The letter at issue was sent in response to the defendant's request for “drug certs” that contained the defendant's name.⁷ The letter states that there are no drug certificates that contain the defendant's name during the time frame relevant to the search warrant.⁸ This statement does not conflict with the statements in Officer Charbonnier's affidavit. Officer Charbonnier wrote that the drugs “purchased by Jet [were] then forwarded to the state police laboratory for analysis.” He did not aver that the drugs purchased by Jet were tested by the laboratory, or that a drug certificate was ever produced. Thus, the defendant failed to “make[ ] a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” Franks, supra.

As to the defendant's remaining arguments, we agree with the motion judge that the affidavit consists of conclusory statements, and is “devoid of specific, non-speculative allegations as to his attorney's alleged shortcomings.” Moreover, the plea hearing transcript reveals a thorough and unequivocal colloquy at which the defendant admitted to the facts and knowingly, voluntarily, and intelligently waived his rights.⁹ As such, the judge did not abuse her discretion in denying the motion without an evidentiary hearing where the defendant failed to raise a “substantial issue.”¹⁰ McWilliams, 473 Mass. at 622.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   The defendant was indicted on nineteen charges including five counts of trafficking of a person for sexual servitude; rape; two counts of assault and battery by means of a dangerous weapon; assault and battery; possession of a class A substance with intent to distribute, subsequent offense; six counts of distribution of a class A substance; and three counts of distribution of a class B substance. He pleaded guilty to all of the charges except the count for rape.

3.   The following facts are taken from the prosecutor's summary of the defendant's charges during the plea hearing, which the defendant agreed with and admitted were true.

4.   The police seized almost twenty-four cell phones, “as well as tablets, a surveillance system, records kept by the defendant about his business, a police scanner, and other indicia of prostitution.” The police also seized four lines of heroin and a digital scale.

5.   The defendant received concurrent sentences of eight to ten years in State prison, with seven years' of probation imposed from and after his incarceration.

6.   The motion was first denied, without prejudice, because the defendant did not file a supporting affidavit. He then filed an affidavit in support of his renewed motion.

7.   The State Police treated the defendant's inquiry as a public records request in accordance with G. L. c. 66, § 10 (b).

8.   The one drug certificate provided to the defendant stemmed from the drugs that were seized after execution of the search warrant.

9.   The defendant further contends that his guilty plea was not knowing, voluntary, and intelligent because his counsel told him he needed to plead guilty, he was not ready to plead, and he did not understand the rights he was giving up. This argument is unavailing as the judge conducted a comprehensive colloquy with the defendant, during which the defendant did not communicate any misunderstanding. In addition, the judge did not err in concluding that the defendant did not raise a substantial issue regarding the effectiveness of his plea counsel. He did not file an affidavit of plea counsel, he did not demonstrate any specific allegations of his plea counsel's shortcomings, and he answered in the affirmative when asked during the plea colloquy whether he had enough time to discuss the case with his counsel. See Commonwealth v. Lynch, 439 Mass. 532, 539 n.2 (2003), and cases cited; Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

10.   “Other points, relied on by the defendant[ ] but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).