COMMONWEALTH v. ALVES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In September 2017, the defendant pleaded guilty in the Superior Court to a series of sex offenses that occurred over the course of two weeks with four different victims, all of whom were between the ages of fourteen and sixteen.² At the time of the assaults in this case, the defendant was on probation for an indecent assault and battery on a person over fourteen years of age, for which he received a continuation without a finding (CWOF).³ After the defendant was charged in this case, a judge found that he was in violation of the terms of his probation. The CWOF was revoked, a guilty finding entered, and the defendant was sentenced to the house of correction.

In January 2019, newly appointed counsel filed a motion to withdraw the defendant's guilty plea and for a new trial, followed shortly thereafter by a motion for an evidentiary hearing. Without holding an evidentiary hearing a Superior Court judge denied the defendant's motion to withdraw his guilty plea. The defendant appeals claiming that (1) his plea was not intelligent and voluntary because plea counsel provided ineffective assistance and the plea colloquy was defective; (2) plea counsel's performance resulted in structural error; and (3) the motion judge erred in denying the motion for an evidentiary hearing. We affirm.

Background. Following the defendant's indictment, the Commonwealth filed a motion for a protective order under Mass. R. Crim. P. 14 (a) (6), as appearing in 442 Mass. 1518 (2004). A judge allowed the motion, by agreement, without prejudice. The order stated that plea counsel “will not reveal the personal information of any victim, including their address, date of birth, or any other identifying information, to the defendant or to any other person outside of the defense team.” The judge also ordered a mental health examination of the defendant under G. L. c. 123, § 15. The examining doctor testified that she did not have any concerns about the defendant's competence to stand trial.

In July 2017, the plea judge held a lobby conference with plea counsel and the prosecutor. During the conference, they discussed the facts underlying each of the indictments; the Commonwealth's evidence, which included video recordings of two of the assaults; and the defendant's record. Also, the prosecutor and plea counsel argued their respective positions as to a plea agreement. In support of plea counsel's argument for probation with conditions, he cited a neuropsychological evaluation of the defendant. Based in part on this evaluation, the prosecutor, who had reviewed the evaluation before the lobby conference, recommended a sentence to the house of correction followed by probation with strict conditions. The judge indicated that he thought a State prison sentence was more appropriate. As the judge had not yet received the evaluation, he stated that he would review it before proceeding.

At a subsequent lobby conference in August 2017, the judge, plea counsel, and the prosecutor discussed the evaluation. The judge stated that if the defendant pleaded guilty, he would impose a sentence of two and one-half years committed, nunc pro tunc to the date of his arraignment and concurrent with the sentence the defendant was then serving, plus five years' probation, with conditions.

In September 2017, the defendant pleaded guilty to all six indictments. At the hearing, the defendant admitted to the following facts. On April 12, 2016, the defendant boarded a bus at a train station and sat near a fifteen year old girl. During the ride, the defendant asked the girl questions, and he touched and rubbed the girl's leg in the area of her knee or lower thigh through a rip in her jeans. After the defendant got off the bus, he approached a sixteen year old girl. He asked her similar questions, put his arm around her shoulder, grabbed her arm, and attempted to lead her in a different direction than she was walking. On April 27, 2016, the defendant got off a train and approached a fourteen year old girl who was sitting on a bench. He asked her similar questions and, during their conversation, he put his arm around her shoulder and touched her breast with his hand. That evening, the defendant approached a fourteen year old girl on a bus. He asked her similar questions, put his arm around her and touched her breast with his hand. When the girl got off the bus, the defendant followed her. The defendant continued to ask her questions and he touched her buttocks. The defendant tried to force the girl into an alley and he told her in vulgar terms that he wanted to, or asked if he could, have sex with her.

After the plea colloquy, the judge sentenced the defendant to concurrent terms of two and one-half years in the house of correction on four of the convictions. The judge ordered that these sentences run nunc pro tunc to the date of the defendant's arraignment and that they be served concurrently with the sentence the defendant was then serving. As a result, the defendant served only about one additional month after he completed the sentence on his prior conviction. The judge also sentenced the defendant to concurrent five-year terms of probation on the two remaining convictions.

In September 2018, appellate counsel filed a motion to vacate the protective order, which was allowed. In January 2019, she filed a motion to withdraw the defendant's guilty plea and for a new trial, and in March 2019, a motion for an evidentiary hearing.⁴ The motion judge, who also was the plea judge, denied both motions.

Discussion. 1. Motion to withdraw guilty plea. A motion to withdraw a guilty plea is treated as a motion for new trial. Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 47-48 (1997). Such a motion should only be granted “if it appears that justice may not have been done.” Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992), quoting Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). Substantial deference is afforded to the judge's decision when the motion judge, as is the case here, was also the plea judge. Commonwealth v. Grant, 426 Mass. 667, 672 (1998), S.C., 440 Mass. 1001 (2003).

a. Plea not intelligent 5 and voluntary. The defendant argues that his plea was not intelligent and voluntary because plea counsel provided ineffective assistance and the plea colloquy was defective. See Boykin v. Alabama, 395 U.S. 238, 242-244 (1969) (guilty plea must be intelligent and voluntary); Huot v. Commonwealth, 363 Mass. 91, 96 (1973) (same). “A defendant's plea is intelligent when made with understanding of the nature of the charges (understanding of the law in relation to the facts) and the consequences of his plea (the legal consequences and constitutional rights he foregoes by pleading guilty rather than proceeding to trial); it is voluntary when free from coercion, duress, or improper inducements.” Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 638 (2007).

A guilty plea that is not intelligent and voluntary is void. See McCarthy v. United States, 394 U.S. 459, 466 (1969). In such circumstances, the defendant does not have to “allege that he suffered any specific harm from the deficient plea colloquy, or that he would not have pleaded guilty had he been given a proper colloquy.” Commonwealth v. Colon, 439 Mass. 519, 529 (2003). Thus, if the defendant here establishes that his plea was unintelligent and involuntary due to “serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), the defendant is not required to show prejudice.

Here, plea counsel's performance did not fall measurably below that of an ordinary fallible lawyer, and did not render the defendant's plea unintelligent and involuntary.⁶ In addition, the omission of the presumption of innocence and the privilege against self-incrimination from the colloquy did not make the plea unintelligent and involuntary.⁷

b. Ineffective assistance of counsel. The defendant's claim that his plea was not intelligent and voluntary due to plea counsel's ineffective assistance rests on the defendant's assertions that counsel (a) did not tell the defendant the victims' names and did not give him copies of the grand jury minutes and police reports; (b) did not inform the defendant of the possibility of civil commitment; and (c) did not give him a copy of the neuropsychological evaluation that stated that “most courts would presumably find him to be not criminally responsible.”⁸ He claims that these omissions deprived him of crucial information that was necessary for a valid plea.

For the reasons that follow, we conclude that the record contradicts or undermines the integrity of the defendant's claims and, as a result, he has not demonstrated that the motion judge abused his discretion or committed a significant error of law in rejecting the defendant's claim of ineffective assistance of counsel. See Commonwealth v. Lastowski, 478 Mass. 572, 575 (2018) (we review “the denial of a motion to withdraw a guilty plea to determine whether there has been a significant error of law or other abuse of discretion” [quotation omitted]).

2. Victims' names, grand jury minutes, and police reports. The defendant claims that plea counsel did not provide him with the names of the victims, the grand jury minutes, and the police reports.⁹

a. Victims' names. “It is beyond debate that a defendant has the right to gain access to relevant evidence that bears on the question of guilt or innocence or that will otherwise help his defense.” Commonwealth v. Holliday, 450 Mass. 794, 802, cert. denied sub nom. Mooltrey v. Massachusetts, 555 U.S. 947 (2008). However, “[i]t is constitutionally permissible ․ to impose limits on pretrial discovery in criminal cases ․ to ensure the safety of witnesses, so long as such limits do not deny the defendant his right to the effective assistance of counsel and a fair trial.” Id. at 802-803. See, e.g., Commonwealth v. Teixeira, 475 Mass. 482, 495 (2016) (no abuse of discretion in protective orders shielding witnesses' names from defendants); Commonwealth v. Cobb, 379 Mass. 456, 469-470, vacated on other grounds sub nom. Massachusetts v. Hurley, 449 U.S. 809 (1980), appeal dismissed, 382 Mass. 690 (1981) (no abuse of discretion in declining to order prosecution to turn over addresses of witnesses); Commonwealth v. Stewart, 365 Mass. 99, 106 (1974) (judges may limit disclosure of grand jury testimony “to protect persons mentioned or for other reasons of security”). Cf. Ray v. Commonwealth, 447 Mass. 1008 (2006), S.C., 467 Mass. 115 (2014) (“We are not persuaded at this preliminary juncture that preventing counsel from sharing the identities of the witnesses with the defendant places this case in the category of those where even competent counsel cannot render constitutionally effective assistance”).

As an initial matter, conspicuously absent from the defendant's affidavit is an assertion that he lacked actual knowledge of the victims' names. Indeed, the defendant admitted that he “was able to look at the grand jury minutes” when his case “first started.” On its face, this statement undermines the defendant's claim that he did not have access to the victims' names.

In any event, here, where the defendant makes only generic claims of harm, and those claims are undermined by the extremely favorable sentence obtained by counsel, the defendant has not shown that the protective order denied him the effective assistance of counsel. See Holliday, 450 Mass. at 802-803. Moreover, once the protective order was vacated, the defendant failed to explain how the now known identities of the victims would have caused him to do anything differently with respect to his decision to plead guilty. In these circumstances, and given the “substantial deference” we give to the motion judge, there was no error. Grant, 426 Mass. at 672.

b. Grand jury minutes and police reports. The defendant's claim that plea counsel did not allow him to have access to the grand jury minutes is contradicted by his pro se motion to withdraw his plea. The motion stated that plea counsel “restricted [the defendant] from seeing the grand jury minutes ․ [and] when [they] first started doing [the defendant's] case [he] was able to look at the grand jury minutes.” Thus, while plea counsel may have “restricted” the defendant's access to the grand jury minutes, the defendant, himself, admits that he had some access to them. In addition, motion counsel's affidavit stated that she was told by plea counsel that “he went over the discovery during a jail visit.” In these circumstances, the motion judge properly rejected or discounted the defendant's claim that plea counsel failed to give him a copy of the grand jury minutes or copies of the police reports.

3. Civil commitment. The defendant's assertion that plea counsel did not inform him of the possibility of civil commitment as a result of his pleas is belied by the record. The defendant signed a waiver of defendant's rights form (waiver of rights form), in which he acknowledged that he had “been advised that by pleading guilty to the present charges, [he] may be subject to adjudication as a sexually dangerous person.” In that form, plea counsel, who also signed the form, affirmed that he discussed the “consequences of the guilty plea” with the defendant, and that he was satisfied that the defendant understood his explanation and the consequences of the guilty plea. See Commonwealth v. Furr, 454 Mass. 101, 109 (2009) (“the defendant's signed waiver may properly be considered as part of the plea record to support a finding that the plea was made intelligently”).

In addition, during the plea colloquy, the judge stated that by pleading guilty, the defendant “may be subject to a separate civil proceeding [in] which the Commonwealth could seek to have [the defendant] committed and held as a sexually dangerous person.” The judge explained that the defendant would have the right to a jury trial on whether he was sexually dangerous and that if he was found to be sexually dangerous, he would be held at the Massachusetts Treatment Center for an indeterminate period up to the rest of his life and he would not be released unless and until he was found to no longer be sexually dangerous. Following this recitation, the judge asked the defendant, “Do you understand that?” and the defendant responded, “Yes.” The judge also asked the defendant if he still wished to plead guilty, and again the defendant answered, “Yes.”¹⁰ On this record, the motion judge properly rejected the defendant's claim.

4. Neuropsychological evaluation. The defendant's contentions that plea counsel should not have provided the neuropsychological evaluation to the Commonwealth, did not provide him with the evaluation, or tell him that it stated that “most courts would presumably find [the defendant] to be not criminally responsible” is undermined by the record.¹¹

The waiver of rights form, signed by plea counsel, affirmed that counsel discussed “the facts in this case and the plea recommendation with [the defendant] in detail” and the “possible defenses.” The motion judge also had two lengthy lobby conferences and thus had a basis other than the defendant's affidavit to assess this claim. During those conferences, plea counsel indicated that he had visited the defendant a “number of times,” had “cogent conversations” with the defendant, and the defendant was “aware of what's going on.” Plea counsel's contact with the defendant, in combination with motion counsel's affidavit and the waiver of rights form, undermines the defendant's claim.¹²

5. Plea colloquy. The defendant claims that the plea colloquy did not inform him that he was waiving (a) the right to be presumed innocent until proven guilty beyond a reasonable doubt and (b) his privilege against self-incrimination. See Mass. R. Crim. P. 12 (c) (3) (A) (i), as amended, 482 Mass. 1499 (2019) (rule 12 [c]) (“The judge shall inform the defendant ․ that by a plea of guilty ․, the defendant waives ․ the right to be presumed innocent until proved guilty beyond a reasonable doubt, and the privilege against self-incrimination”). Although these statements were omitted from the plea colloquy, their omission alone does not render the defendant's plea unintelligent and involuntary. See, e.g., Commonwealth v. Bowler, 60 Mass. App. Ct. 209, 212 (2003) (plea not unintelligent or involuntary despite omission of right against self-incrimination in colloquy). “ ‘[W]hile compliance with the procedures set out in rule 12 (c) is mandatory, adherence to or departure from them is but one factor to be considered in resolving’ whether a plea was knowingly and voluntarily made.” Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 580 (2001), quoting Commonwealth v. Johnson, 11 Mass. App. Ct. 835, 841 (1981). “Each case must be analyzed individually to determine whether compliance with rule 12 would have made a difference in the decision of the defendant to plead guilty.” Rodriguez, supra.

Here, the defendant acknowledged, and plea counsel affirmed, on the waiver of rights form, that they had discussed the rights that the defendant was giving up, including the right against self-incrimination and the presumption of innocence. See Furr, 454 Mass. at 109. In addition, during one of the lobby conferences, the parties discussed the defendant's “lengthy [criminal] record,” which included convictions for breaking and entering in the nighttime, larceny over $250, and indecent assault and battery. This suggests that the defendant was aware of the right against self-incrimination and the presumption of innocence before the plea colloquy here. See Commonwealth v. Russell, 37 Mass. App. Ct. 152, 157 (1994), cert. denied, 513 U.S. 1094 (1995). The motion judge did not abuse his discretion or commit an error of law when he ruled that the two omissions from the colloquy did not make the plea unintelligent and involuntary.

6. Structural error. The defendant's brief raises two claims of structural error based on violations of the right to counsel under the Sixth Amendment to the United States Constitution. See generally Commonwealth v. Francis, 485 Mass. 86, 99-100 (2020) (explanation of structural errors).

a. Meaningful adversarial testing. The defendant claims that plea counsel abandoned his role as advocate because he “entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 659 (1984) (failure to subject prosecution's case to meaningful adversarial testing constitutes denial of Sixth Amendment rights; no showing of prejudice is required). See Commonwealth v. Valentin, 470 Mass. 186, 194 (2014) (denial of Sixth Amendment right to counsel constitutes structural error; no showing of prejudice is required). In support of this claim, the defendant cites to plea counsel's provision of the neuropsychological evaluation to the Commonwealth, his failure to use the assessment of the evidence in that evaluation to raise a defense, and his agreement to the protective order.¹³ As plea counsel successfully used the evaluation to obtain a favorable plea, his use of the evaluation does not support the defendant's claim that counsel abandoned his role as an advocate. Further, the fact that plea counsel agreed to the protective order, alone, is insufficient to establish that the defendant suffered the “complete denial of counsel.” Cronic, 466 U.S. at 659. See, e.g., Bell v. Cone, 535 U.S. 685, 696-698 (2002) (rejecting claim that counsel failed to subject case to meaningful adversarial testing as failure was not complete). This is so even if counsel's agreement to entry of the protective order was error, something we do not conclude. See Cronic, supra at 656.¹⁴

b. Autonomy. The defendant argues, in essence, that as his plea was unintelligent and involuntary, he “was left with no choice but to enter a plea of guilty.” See McCoy v. Louisiana, 138 S. Ct. 1500, 1508, 1511 (2018) (whether to plead guilty is decision reserved for defendant and protected by right to autonomy under Sixth Amendment; violation of that right is structural error). As the motion judge properly rejected the defendant's claim that his plea was unintelligent and involuntary, this claim also fails.

7. Motion for evidentiary hearing. When considering a motion to withdraw a plea, a “judge may rule on the ․ issues presented by such motion on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits.” Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). When determining whether a substantial issue exists, a judge considers “the seriousness of the issue itself and the adequacy of the showing that has been made with respect to that issue.” Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004). “A defendant's submissions in support of a motion for a new trial need not prove the factual premise of that motion, but they must contain sufficient credible information to cast doubt on the issue” (quotation and citation omitted). Id.

As the motion judge properly rejected the defendant's assertions that plea counsel did not tell him the victims' names, did not give him copies of the grand jury minutes and police reports, did not inform him of the possibility of civil commitment, and did not give him a copy of the neuropsychological evaluation or tell him that it opined that most courts would presumably not find him to be criminally responsible based on the record before him, the defendant failed to raise a substantial issue that merited an evidentiary hearing. See Goodreau, 442 Mass. at 348-349.

Order entered June 19, 2019, denying motions to withdraw guilty plea and for a new trial, and for hearing affirmed.

FOOTNOTES

2.   He pleaded guilty to one count of assault with intent to rape a child under the age of sixteen; three counts of indecent assault and battery on a person fourteen years of age or older; and two counts of assault and battery.

3.   This assault was an indecent touching of a young woman's breast on a train.

4.   The defendant earlier had filed a pro se motion to withdraw his guilty pleas. At his request, no action was taken on the motion and appellate counsel was appointed. As appellate counsel filed the motion before us, we refer to her as “motion counsel.”

5.   The defendant claims that his plea was not “knowing.” Because “the term ‘knowing’ is but another way of describing the longstanding requirement that a guilty plea be made intelligently,” we use only the term “intelligent” throughout our discussion. Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 637 n.5 (2007).

6.   As the defendant failed to establish that plea counsel's performance was deficient, the defendant's claim of prejudice under the second prong of Saferian and his claim of a substantial risk of a miscarriage of justice also fail. Further, as the defendant failed to establish that counsel's performance or the defective plea colloquy individually rendered his plea unintelligent and involuntary, the defendant's claim that their combination did so also fails.

7.   We also note that the defendant's unsupported assertion that he “had cognitive limitations that may have impaired his ability to intelligently waive his rights without the assistance of effective counsel” was not sufficient to establish that counsel's performance was deficient. Moreover, in light of the record, we see no merit in the defendant's stray assertions, interspersed throughout his brief, that his plea was not intelligent or voluntary due to “intellectual challenges,” “limitations,” or “disabilities.”

8.   The defendant's brief characterizes the evaluation as “determin[ing] that [the defendant] was not criminally responsible for his actions,” and that “the doctor's opinion [found] him not responsible.” We use the doctor's statement to avoid a mischaracterization.

9.   Motion counsel's affidavit filed in support of the motion stated that plea counsel told her during a telephone conversation that “he did not provide the names of the complaining witnesses to the defendant ․ he went over the discovery during a jail visit but did not provide any identifying information of witnesses because of the protective order” and that his full file “was destroyed when his office was flooded.” The affidavit also stated that motion counsel asked plea counsel “if he would provide an affidavit detailing what he had told [her], he refused ․ [and] stated that is not what he does.” Although we are troubled by plea counsel's unwillingness to provide an affidavit, he acknowledged that he did not give the defendant the victims' names. It is also possible that such an affidavit may not have been helpful to the defendant. Because motion counsel's affidavit documents her extensive efforts to contact plea counsel and secure his affidavit, we draw no negative inference from the lack of an affidavit. See Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 550-551 (2014).

10.   In addition, before this sequence of questions, the judge told the defendant that if at any time he did not understand a question or was confused by anything the judge asked, the defendant was to let the judge know; the defendant never indicated to the judge that he did not understand or was confused by the judge's questions. The judge also told the defendant that if at any time he wanted to talk to plea counsel, the defendant was to tell the judge and measures would be taken so that the defendant could consult with counsel in private; the defendant never made such a request. Further, at the end of the colloquy, the judge asked the defendant if he had enough time to talk to plea counsel about his case, his rights, his defenses, and the consequences of pleading guilty, and the defendant responded, “Yes.”

11.   Plea counsel noted that a defense of lack of criminal responsibility could result in an indefinite period of civil commitment.

12.   The defendant also asserted that plea counsel's provision of the evaluation to the Commonwealth was ineffective assistance of counsel as it gave “the Commonwealth ․ a basis to proceed civilly against the defendant.” As this claim is raised in the defendant's argument that his plea was not intelligent and voluntary, but it does not appear to be tethered to that argument, we address it separately. In the circumstances presented here, the motion judge did not abuse his discretion in concluding that plea counsel's tactic to use the evaluation to obtain a more favorable plea was not manifestly unreasonable. See Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979) (“arguably reasoned tactical or strategic judgments” do not amount to ineffective assistance of counsel unless they are “manifestly unreasonable” [quotation omitted]). The defendant received a generous plea deal, based in part on the contents of the evaluation. Upon the completion of his prior sentence, the defendant had to serve only one additional month on these six convictions involving four victims. As the motion judge concluded, “[g]iven that the maximum sentence for some of the charged offenses is life in State prison, the defendant cannot demonstrate that it would have been rational to proceed to trial.”

13.   The defendant also cites to plea counsel's failure to tell the defendant the victims' names and to discuss the neuropsychological evaluation with the defendant. As discussed supra, the motion judge could have properly rejected these assertions, and they thus do not support the defendant's claim of structural error.

14.   While some of plea counsel's remarks during the lobby conferences were better left unsaid, they, too, are insufficient to sustain the defendant's claim that plea counsel abandoned his role as the defendant's advocate.