COMMONWEALTH v. FLORES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Luis Flores, appeals from an order denying his fourth motion for a new trial seeking to withdraw his 1992 guilty pleas. On appeal he argues that (1) his convictions of armed robbery and assault in a dwelling were duplicative, (2) he received ineffective assistance of counsel, and (3) the Commonwealth breached the plea agreement. We affirm.

Discussion. “A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b)[, as appearing in 435 Mass. 1501 (2001)].” Commonwealth v. Rodriguez, 467 Mass 1002, 1004 (2014). A judge may grant such a motion “if it appears that justice may not have been done.” Mass. R. Crim. P. 30 (b). “A motion for a new trial is committed to the sound discretion of the judge.” Rodriguez, supra. “Therefore, we review the denial of a motion for a new trial for ‘a significant error of law or other abuse of discretion.’ ” Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014).²

1. Convictions. The defendant argues that he was convicted of felony-murder, and that the predicate convictions of armed robbery and armed assault in a dwelling merged with the felony-murder, thus prohibiting a separate sentence for those convictions. We disagree.

The defendant has not established that he was convicted of felony-murder. As indicated by this record, although charged with two counts of murder in the first degree, the defendant pleaded guilty to, and was convicted of, two counts of the lesser offense of murder in the second degree. The facts of the case, including a full confession by the defendant to the police after his arrest, established that the defendant intentionally shot and killed the two victims execution style. See Commonwealth v. Pasteur, 66 Mass. App. Ct. 812, 817 (2006) (stating that “[m]alice for purposes of murder in the second degree may ․ be premised on a specific intent to kill”). Plea counsel's affidavit stated that the defendant pleaded guilty to two counts of the lesser offense of murder in the second degree. The defendant's own supporting memoranda and affidavits filed in support of his second and third motions for a new trial stated that he pleaded to two counts of murder in the second degree. Based on the foregoing, there is nothing to suggest that the defendant's convictions were based on a felony-murder theory, rendering this argument meritless.

2. Ineffective assistance of counsel. Because the defendant had raised in his third motion for a new trial a claim of ineffective assistance of counsel (also based on the aggregation of his sentences), which was litigated and rejected by a judge of the Superior Court in an order that the defendant did not appeal, the defendant is barred from relitigating this claim. “[U]nder the doctrine of direct estoppel, a defendant is barred from seeking review of claims ‘actually litigated’ and decided against him.” Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 699 (2015), quoting Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005).

3. Breach of plea agreement. The Commonwealth did not breach the plea agreement. “The plea bargain has often been compared to an enforceable contract.” Commonwealth v. Cruz, 62 Mass. App. Ct. 610, 611 (2004). “When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id., quoting Santobello v. New York, 404 U.S. 257, 262 (1971). “[W]hen the prosecutor enters into plea bargain agreements, ‘the court will see that due regard is paid to them, and that the public faith which has been pledged by [the prosecutor] is duly kept.’ ” Commonwealth v. Santiago, 394 Mass 25, 28 (1985), quoting Commonwealth v. Benton, 356 Mass. 447, 448 (1969).

The defendant argues that the Commonwealth has breached its promise contained in the plea agreement; the promise made, he claims, was that the “on and after” sentences imposed on his armed robbery and armed assault in a dwelling convictions would, for the purposes of parole, aggregate with the sentences imposed on the convictions of murder in the second degree. Although the defendant received in 2004 a letter from the parole board informing him that his sentences would be aggregated, he received a follow-up letter in 2007 from the office of Massachusetts Correctional Legal Services informing him that the information contained in the 2004 letter was incorrect, and that his sentences, in fact, were not aggregated based on the parole board's changed policy (in the 1990s), which abolished aggregated sentences.³

The defendant has failed to provide any factual support that the plea agreement included any promise by the Commonwealth that his sentences would be aggregated. In addition, the motion judge was not required to credit the defendant's self-serving affidavit, filed in support of his motion, stating that he had relied on the Commonwealth's offer that his sentences would be aggregated for the purpose of parole, enabling him “to be home in fifteen years if given parole.” See Commonwealth v. Furr, 454 Mass. 101, 106 (2009) (“The judge may decide the motion [to withdraw a guilty plea] based solely on the submitted affidavits, and the weight and credibility to be accorded those affidavits are within the judge's discretion”). See also Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003) (holding that defendant's “self-serving affidavits and assertions are not sufficient, on their own, to raise a substantial issue”).

Conclusion. Based on the foregoing, we discern no error, and certainly no abuse of discretion, in the judge's denial of the defendant's motion for a new trial. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Order denying fourth motion for new trial affirmed.

FOOTNOTES

2.   Although this appeal is untimely, we choose to decide it on the merits. See Eyster v. Pechenik, 71 Mass. App. Ct. 773, 781–782 (2008).

3.   In May 2007, the defendant wrote to the parole board inquiring as to whether his sentences were aggregated.