COMMONWEALTH v. DELGRECO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A District Court jury convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor (OUI). Two days later, the defendant waived his right to a jury trial on the subsequent offender portion of the complaint and was convicted of OUI, third offense. On appeal, the defendant claims error in the subsequent offender conviction because (1) the evidence was insufficient; (2) the judge abused her discretion in allowing the Commonwealth to reopen the evidence; and (3) his trial counsel provided ineffective assistance. We affirm.

Discussion. 1. Sufficiency. We review the sufficiency of the evidence to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt (emphasis in original).” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). To establish the defendant's status as a subsequent offender, the Commonwealth was required to prove beyond a reasonable doubt that the defendant, Daniel Anthony Delgreco, was the same Daniel Anthony Delgreco who had two prior convictions for a like offense. See G. L. c. 278, § 11A. “Mere identity of name is not sufficient to indicate an identity of a person.” Commonwealth v. Koney, 421 Mass. 295, 302 (1995).

Here, the Commonwealth introduced certified records of 2010 and 2016 California convictions in the name of Daniel Anthony Delgreco.² The certified records related to the 2016 conviction included the defendant's acknowledgment of the 2010 conviction. The California records showed the convictions of Daniel Anthony Delgreco with a date of birth of August 7, 1965. The booking officer for the underlying Massachusetts offense testified that the defendant stated that his name was Daniel A. Delgreco and his date of birth was August 7, 1965. This evidence sufficiently “link[ed] the person named in the conviction record to the defendant.” Commonwealth v. Maloney, 447 Mass. 577, 588 (2006).

2. Reopening evidence. After the parties concluded their presentation of evidence in the subsequent offender portion of the trial, the judge reopened the evidence to allow the defendant to stipulate to the underlying Massachusetts OUI conviction. The defendant then stipulated to the Massachusetts conviction after a colloquy with the judge. Now the defendant claims that reopening the evidence to allow the stipulation was an abuse of discretion.

The defendant cites no authority for his claim that proof of the underlying Massachusetts conviction is an essential element to be proved in a subsequent offender proceeding. The only issue to be tried in the subsequent offender proceeding was whether the defendant had two prior convictions for like offenses. See G. L. c. 278, § 11A; Instruction 2.540 of the Criminal Model Jury Instructions for Use in the District Court (2009). While the judge reopened the evidence to allow a stipulation, there was no need to do so. Accordingly, there was no abuse of discretion, much less a substantial risk of a miscarriage of justice.³

3. Ineffective assistance of counsel. The defendant claims for the first time in this direct appeal that trial counsel's assistance was constitutionally ineffective because, during the subsequent offense proceeding, trial counsel (1) failed to move for a required finding of not guilty on the ground that the Commonwealth had not proved the defendant's identity; (2) acquiesced to the reopening of the Commonwealth's case; and (3) stipulated to his conviction on the underlying Massachusetts OUI. We disagree.

“[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial.” Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). There is a narrow exception in cases like this one where “the factual basis of the claim appears indisputably on the trial record” (citation omitted). Id. at 811. For the reasons we have discussed above, the evidence was sufficient to prove that the defendant's Massachusetts OUI conviction was his third conviction for a like offense, so “trial counsel's failure to move for a required finding of not guilty did not amount to ineffective assistance of counsel.” Commonwealth v. Costa, 407 Mass. 216, 224 n.9 (1990). Further, because the defendant's conviction on the underlying Massachusetts conviction was not in dispute and was not an element of proof at the subsequent offender portion of the trial, trial counsel was not ineffective for entering a stipulation to the conviction.

Judgment affirmed.

FOOTNOTES

2.   Although records of both convictions were in evidence, the judge considered only the certified record of the 2016 conviction.

3.   Because the defendant did not object on this basis at trial, we review only for a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 141-142 (2001); Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 12 (2010).