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Appeals Court of Massachusetts.



Decided: April 30, 2021

By the Court (Rubin, Blake & Lemire, JJ.1),


Early in the morning on August 1, 2012, the defendant entered the residence occupied by Kendra Taber, the mother of his child. He went to the bedroom where Taber slept in bed with David Defino. The defendant repeatedly stabbed Defino in various parts of his body and in the process slashed Taber's face. Ultimately, the defendant pleaded guilty to one count of armed assault with intent to murder, G. L. c. 265, § 18 (b), two counts of armed burglary, G. L. c. 266, § 14, one count of mayhem, G. L. c. 265, § 14, one count of assault and battery by means of a dangerous weapon causing serious bodily injury, G. L. c. 265, § 15A (c) (i), and one count of violating an abuse prevention order, G. L. c. 209A, § 7. On the first, second, and fourth counts, he was committed to State prison for fourteen years to eighteen years, which was the recommended sentence agreed upon in a plea agreement between the Commonwealth and the defendant. On the third and sixth counts he was sentenced to ten years of probation from and after his committed sentence. On the final count he was sentenced to two and one-half years committed to the house of correction concurrent with his committed State prison sentence.2

The defendant's counsel apparently worked hard to negotiate the plea. He had initially suggested a fairly light sentence, but the judge had indicated that she would not accept a plea agreement with such a sentence. He subsequently suggested a prison sentence of twelve years to twelve years and a day followed by a term of probation, but again the judge indicated that she would not accept the plea agreement and impose such a sentence. The fourteen to eighteen years was at the high end of the guideline sentence, which was twelve to eighteen years.

The defendant filed a motion to withdraw his guilty plea on the ground of ineffective assistance of plea counsel. See Commonwealth v. Lastowski, 478 Mass. 572, 575-576 (2018). He alleges that at sentencing, rather than asking the judge to accept the agreed upon sentence, defense counsel should have argued the existence of a number of what he describes as critical mitigating factors. He describes some evidence of good character, such as having a solid work history, being the caretaker for a property and the primary caretaker for an elderly person who resided on the property, and being a concerned and involved father. He asserts that he suffered severe sexual abuse at the hands of his father from infancy until age nine. He asserts that Defino, who was staying in an apartment where the defendant's own child lived, was previously convicted of rape of a child, which is true, and that the defendant had a history with Defino including that Defino had impregnated the defendant's first wife when she was twelve years old. The defendant asserts that he paid for that apartment where his child lived and that he had been there with Taber during the days prior to the attack, and he asserts that the attack was committed in the heat of passion and therefore he was unlikely to repeat the crime.3

We need not and do not decide whether the facts asserted by the defendant are true, nor whether, if true, they would amount to mitigating factors that might play a role in sentencing. Even assuming there were mitigating factors that should have been but were not utilized by defense counsel in the proceedings that led to the sentencing of the defendant, the defendant's one claim, that those mitigating factors should have been presented after a plea deal was struck, during the proceeding at which both parties urged the judge to accept the plea agreement, is incorrect. Asking the judge to accept the agreed upon plea, including the agreed upon sentence, was not ineffective assistance of counsel on the facts and circumstances of this case. We express no opinion whether the alleged mitigating facts and circumstances should have been deployed by defense counsel in some way they were not prior to the sentencing hearing -- for example, during discussions with the judge about what length of sentence might be appropriate or in negotiations with the prosecutor about that question. We note that there is no affidavit from plea counsel -- or any indication that one was sought -- which makes it difficult to assess what plea counsel knew, what he actually did prior to striking the plea agreement, and whether it met the standard for effective assistance of counsel.

The order denying the motion to withdraw the guilty plea is affirmed.4

So ordered.



2.   The fifth count, charging assault and battery by means of a dangerous weapon causing serious bodily injury, was nol prossed.

3.   Although it is not relevant to our conclusion, it does appear that the judge was at least aware of the claim by the defendant that the victim Defino was a pedophile in the home with his child, as there was some discussion made on the record the day prior to the plea about whether Defino's conviction could be introduced into evidence. This was at the same hearing at which defense counsel subsequently raised the possibility of a twelve-year sentence as part of the plea agreement, something the judge said that she was unlikely to accept.

4.   We also dismiss the defendant's appeal from the judge's denial of his motion to stay sentence pending motion for new trial, which was motivated by the defendant's concerns about the COVID-19 pandemic's threat to his health. Our decision in this case to affirm the judge's order denying the defendant's motion to withdraw guilty plea renders moot his appeal of the judge's decision on his motion to stay. See Commonwealth v. Berrios, 84 Mass. App. Ct. 521, 522 n.1 (2013).

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