COMMONWEALTH v. CHAISSON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In October of 1966, the defendant pleaded guilty in Superior Court to larceny, attempted larceny, and breaking and entering in the nighttime. In June of 2004, that is, thirty-seven years after his convictions, the defendant sought to vacate his guilty plea by filing a motion for a new trial. Specifically, the defendant argued that his plea counsel was constitutionally ineffective for allegedly failing to pursue an alibi defense. The defendant also noted that the convictions had collateral consequences on his ability to obtain a handgun permit. After that motion was denied, the defendant did not appeal. In 2018, the defendant filed a second motion for new trial in which he sought to argue that his plea counsel was ineffective for failing to advise him of the collateral consequences of his convictions on his right to possess a firearm. A Superior Court judge denied that motion without having held a hearing, and this time the defendant filed an appeal.

We affirm. We agree with the Commonwealth that this issue was waived by the defendant's failure to raise it in his first motion for new trial.² See Commonwealth v. Deeran, 397 Mass. 136, 139 (1986). The defendant argues that this line of argument was not available at the time he filed his first motion for new trial (2004), as the controlling law at that time did not recognize a fundamental and individual right to possess a firearm. See Commonwealth v. Davis, 369 Mass. 886 (1976). Whatever the merits of this contention, it was not presented below, and therefore is not properly before us. Commonwealth v. Dew, 478 Mass. 304, 309 (2017).³

Moreover, unconstitutional ineffectiveness requires “serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, [determining] whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014), quoting Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). We cannot see how a lawyer's failure to advise his client in 1966 of rights that the courts would not recognize until 2008, see District of Columbia v. Heller, 554 U.S. 570 (2008), would represent “serious incompetency, inefficiency, or inattentiveness,” or how that failure could have possibly deprived the defendant of an “available” and “substantial” ground of defense.⁴ Nor do we see how an evidentiary hearing would have aided the defendant, considering the weight of the law against him.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   Regarding the merits, we note that the age of the defendant's convictions -- now over a half-century old -- casts doubt on the validity of his factual claims, which he has supported only with his own affidavit. See Commonwealth v. Lopez, 426 Mass. 657, 663 (1998). In addition, because of the obvious significant prejudice to the Commonwealth that occur from vacating an ancient plea agreement, the defendant must meet a higher bar than usual in order to prove that justice warranted reversal.

3.   For similar reasons, we reject the defendant's equal protection argument.

4.   Because the defendant has not shown that he is entitled to relief, we will not discuss his more general contention that this court should instruct lower courts to warn all defendants who are United States citizens that a guilty plea might affect their Second Amendment rights.