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Appeals Court of Massachusetts.



Decided: November 12, 2021

By the Court (Massing, Kinder & Neyman, JJ.1)


The defendant appeals from an order denying his motion to withdraw his guilty plea to murder in the second degree. The defendant claims that his plea was not knowing and voluntary because the judge failed to inform him that he could not earn good time credit while serving a life sentence. The defendant also argues that plea counsel was ineffective for failing to advise him that he would not be able to earn good time credit to reduce the time he would be required to serve in prison before becoming eligible for parole. We conclude that the judge adequately advised the defendant regarding the sentencing consequences of his plea and that the defendant was not required to be informed about good time credit for his plea to be knowing and voluntary. We also conclude that the judge did not abuse his discretion in determining that the affidavits supporting the defendant's claim of ineffective assistance of counsel failed to raise a substantial issue warranting an evidentiary hearing. Therefore, we affirm the order denying the defendant's motion.

Background. We draw the relevant facts from the prosecutor's summary at the change of plea hearing. On July 31, 2015, the defendant, then eighteen years old, encountered the victims, eighteen year old Keenan Pellot, Jr., and seventeen year old Karif Brown, at Chewy's Barber Shop in Pittsfield. There had been an argument between the defendant and Brown the day before regarding the defendant's relationship with Pellot's sister. That dispute continued and heated words were exchanged in the barber shop, which was full of employees and customers. As the defendant followed Pellot and Brown out of the barber shop, Pellot turned and punched the defendant in the face. The defendant then pulled a firearm from his backpack and shot Pellot five times, killing him. The defendant also shot Brown five times, seriously injuring him. The defendant fled on foot and was apprehended the following day at his uncle's home in Utica, New York. A knife was recovered at the scene under Pellot's body.

Indictments were returned charging the defendant with murder in the first degree, armed assault with intent to murder, and illegal possession of a firearm. Approximately two years later, after extensive negotiations, the Commonwealth and the defendant jointly presented a plea agreement to a Superior Court judge. The defendant executed a waiver of rights form indicating that his attorney had advised him of the elements of the offenses and of “the nature and range of the possible sentence(s) on the charge(s), including the maximum possible sentence(s), [and] any mandatory minimum sentences that might be applicable.” The parties agreed that the defendant would plead guilty to each indictment, but only to so much of the murder indictment as alleged murder in the second degree. The defendant's guilty pleas were accepted by the judge after a thorough colloquy during which the “defendant stated that he had been fairly represented, that he was happy with his counsel's performance, that he understood what was taking place, and that he was pleading guilty because he was in fact guilty.”

Regarding disposition, the prosecutor explained that if the defendant's “institutional adjustment [ ] was positive,” the Commonwealth would not oppose parole after eighteen years. He further stated that “the minimum parole date will -- hearing will be on the [eighteen] year mark.” Defense counsel described the defendant as “among the brightest people I have ever represented over the course of many years. He's intelligent. He's articulate. He understands how this all works.” Defense counsel went on to state, “It's important to keep in mind the sentences, under the statute, it's 18 years to parole eligibility for him. He understands that he controls his future.” The judge accepted the parties’ agreed recommendation regarding the sentence. On the conviction of murder in the second degree, the defendant was sentenced to a term of life in prison with eligibility for parole after eighteen years.2 Before the sentence was imposed, the judge stated, “I think this is an appropriate sentence in this case. It is life. That's what goes down on the papers, life. It's not [eighteen] years. It is life. The only qualification is the [d]efendant is eligible for parole.”

Over two years later, the defendant filed a motion to withdraw his guilty pleas, arguing that he did not understand that he could not earn good time credit on the murder conviction, and that had he known, he would not have pleaded guilty. The motion was supported by affidavits from the defendant, trial counsel, and appellate counsel. In a comprehensive written decision, the judge denied the motion without an evidentiary hearing, reasoning that (1) failure to inform the defendant of the collateral consequence of good time credit did not render his guilty plea involuntary and unknowing, (2) defense counsel was not ineffective for failing to advise the defendant regarding earned good time credit, and (3) the defendant had not established prejudice. This appeal followed.

Discussion. A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), see Commonwealth v. Scott, 467 Mass. 336, 344 (2014), and may be granted only “if it appears that justice may not have been done.” Mass. R. Crim. P. 30 (b). Judges are to apply the rule 30 (b) standard “rigorously, and should only grant a postsentence motion to withdraw a plea if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth.” Commonwealth v. Wallace, 92 Mass. App. Ct. 7, 10 (2017), quoting Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992).

“The judge is the final arbiter on matters of credibility” (quotation and citation omitted), Scott, 467 Mass. at 344, and his decision to deny a motion to withdraw a plea “will not be reversed ․ unless it is manifestly unjust, ․ or unless the plea colloquy was infected with prejudicial constitutional error” (citation omitted). Commonwealth v. Correa, 43 Mass. App. Ct. 714, 716 (1997). Particular deference is owed to the motion judge where, as in this case, he was also the plea judge. See Commonwealth v. Sylvester, 476 Mass. 1, 6 (2016). Absent “a significant error of law or other abuse of discretion,” the denial of a motion to withdraw a guilty plea must stand. Id. at 4.

Validity of plea. While prisoners in Massachusetts are generally eligible for earned good time credit, see G. L. c. 127, §§ 129C and 129D; 103 Code Mass. Regs. § 411.09 (2004), a prisoner serving a life sentence for murder is not eligible for earned good time credit “unless the sentence is commuted or otherwise revised to a term of years.” 103 Code Mass. Regs. § 411.07 (2004). Because the defendant's life sentence in this case was not commuted or revised to a term of years, he was not eligible for earned good time credit as a matter of law.

On appeal, the defendant argues that his guilty plea was not knowing and voluntary because the judge failed to advise him that he would not be able to earn good time credit. We disagree. It is well settled that “[g]ood time, like parole eligibility ․ is but a ‘contingent consequence of being confined.’ ” Commonwealth v. Brown, 6 Mass. App. Ct. 844, 844 (1978), quoting Commonwealth v. Morrow, 363 Mass. 601, 606 (1973). The failure to inform the defendant of such a collateral consequence does not render the guilty plea unknowing and involuntary. See Commonwealth v. Roberts, 472 Mass. 355, 362 (2015).

The defendant's reliance on Padilla v. Kentucky, 559 U.S. 356, 369 (2010), is misplaced. Padilla stands for the limited proposition that the right to counsel under the Sixth Amendment to the United States Constitution applies to deportation because of its “close connection” to the criminal process. See Sylvester, 476 Mass. at 6-7. “Padilla did not address any distinction between the direct and collateral consequences of pleading guilty and limited its holding to ‘the unique nature of deportation.’ ” Commonwealth v. Henry, 488 Mass. 484, 497 (2021), citing Padilla, 559 U.S. at 365. “We have interpreted the Padilla case not as an abrogation of the direct and collateral consequence distinction, as the defendant suggests, but simply as clarification that deportation is not ‘collateral’ to the criminal justice process” (quotation and citation omitted). Sylvester, supra at 7. Thus, Padilla does not support a conclusion that earned good time credit is a direct rather than a collateral consequence of confinement.

Ineffective assistance. The defendant next argues that his plea counsel was constitutionally ineffective for failing to advise him that he would not be eligible for earned good time credit toward his life sentence for murder. To withdraw his plea on this ground, the defendant was required to “show[ ] that his attorney's performance fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that he suffered prejudice because of his attorney's unprofessional errors.” Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). The judge did not abuse his discretion in concluding that the defendant failed to make an adequate showing on either prong of the ineffective assistance standard.

The Supreme Court has acknowledged an open question exists regarding the scope of reasonable professional advice regarding the collateral consequences of a conviction. See Padilla, 559 U.S. at 365 (“We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ ”). We need not reach that question in this case, however, because the defendant failed to show that his counsel's failure to advise him regarding good conduct credit fell below what might be expected from competent counsel. The judge specifically discredited the defendant's statement in his affidavit that counsel affirmatively advised him that he would be eligible for good conduct credit. Rather, the judge credited counsels’ affidavits stating that they had no memory of discussing the issue with him, and that it was not their customary practice to do so.

Citing the Committee for Public Counsel Services (CPCS), Assigned Counsel Manual, Performance Standards Governing Representation of Indigents in Criminal Cases, § 4.B.5.d. (Jan. 1, 2019), the defendant argues that appointed counsel are expected to advise their clients, prior to pleading guilty, of “the consequences of conviction.” The cited section of the manual contains a detailed list of fifteen consequences that should be explained to clients; however, eligibility for earned good time credit is not among them. The judge was warranted in concluding that “counsel's actions did not fall measurably below that of a reasonably fallible lawyer.”

We also agree with the judge that the defendant failed to make an adequate showing of prejudice. “In the context of a guilty plea, in order to satisfy the ‘prejudice’ requirement, the defendant has the burden of establishing that ‘there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Clarke, 460 Mass. at 47, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). Not only must he “aver that to be the case․ In addition, he must ‘convince the court that [his] decision to reject the plea bargain would have been rational under the circumstances’ ” (citation omitted). Clarke, supra. This requires a “substantial showing” that (1) the defendant had an available, substantial ground of defense that would have been pursued if he had been advised that he was not eligible for earned good time credit, (2) there is a reasonable probability that a different plea bargain could have been negotiated at the time, or (3) special circumstances were present that would have caused the defendant to place particular emphasis on the good time credit. Commonwealth v. Lastowski, 478 Mass. 572, 577-578 (2018), citing Clarke, supra at 47-48.

After considering each of these factors and the defendant's supporting affidavits, the judge concluded that the evidence against the defendant was “overwhelming”; that the plea agreement, which afforded the defendant the possibility of serving eighteen years rather than a mandatory life sentence, afforded him a substantial benefit; that it was “extremely unlikely” that the Commonwealth would have made a better offer; and there were no special circumstances. The judge did not abuse his considerable discretion. Multiple eyewitnesses presumably would have testified at trial that they observed the defendant shoot Pellot five times at close range and then turn and shoot Brown five times. While appellate counsel's affidavit alludes to a potential manslaughter defense, the affidavits of trial counsel and the defendant are silent regarding any theory of defense. Given the strength of the evidence and the substantial benefit conferred by the plea agreement, we discern no abuse of discretion in the judge's conclusions that the defendant did not allege a substantial ground of defense and that “[i]t was extremely unlikely that the Commonwealth would [have] offer[ed] a better plea deal.”

Nor was it an abuse of discretion to conclude that the defendant failed to show that he would have rationally rejected the plea agreement based on “special circumstances.” The defendant stated in his affidavit that when he pleaded guilty, he believed that with good time credit he would be eligible for parole after serving approximately fifteen years rather than eighteen years. Thus, the defendant was willing to accept a plea agreement that would make him eligible for parole at the age of thirty-three. The judge could readily conclude that it would be irrational for the defendant to elect to go to trial and risk a mandatory life sentence if he knew he that he would actually be eligible for parole at the age of thirty-six. See Commonwealth v. Villalobos, 437 Mass. 797, 805 (2002) (“A defendant's regret, in hindsight, that he was not made aware of that collateral consequence at the time of his plea does not suffice to vacate his plea of guilt or admission to sufficient facts”).

Finally, we see no abuse of discretion in the judge's decision to deny the motion without an evidentiary hearing. “The judge may rule on the motion for new trial from the face of affidavits or other supporting material, without an evidentiary hearing, ‘if no substantial issue is raised by the motion or affidavits.’ ” Commonwealth v. Marrero, 459 Mass. 235, 240 (2011), quoting Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). “However, ‘where a substantial issue is raised and is supported by a substantial evidentiary showing, the judge should hold a hearing.’ ” Marrero, supra, quoting Commonwealth v. Stewart, 383 Mass. 253, 260 (1981). “[B]oth the seriousness of the issue itself and the adequacy of the defendant's showing on that issue must be considered.” Marrero, supra.

Although a claim of ineffective assistance of counsel raises “an issue of constitutional importance that readily qualifies as a serious issue” (quotation and citation omitted), Commonwealth v. Denis, 442 Mass. 617, 629 (2004), as our previous discussion suggests, the defendant's showing on that issue was not substantial. The judge, who was in the best position to assess the credibility of the affidavits submitted by the defendant, rejected the defendant's assertions as not credible. We see no reason to second guess the judge's credibility assessments, particularly where the statements by the prosecutor, defense counsel, and the judge at the sentencing hearing made it clear that the defendant would serve at least eighteen years. In this context, “[t]he defendant's self-serving affidavits and assertions [were] not sufficient on their own, to raise a substantial issue.” Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003).3

Order denying motion to withdraw guilty plea affirmed.


2.   The defendant was also sentenced to terms of from five to seven years on the indictment charging armed assault with intent to murder (five-year minimum mandatory sentence), and from two and one-half years to five years on the indictment charging illegal possession of a firearm (two-year minimum mandatory sentence). These sentences were to be served concurrently with the sentence imposed on the murder indictment. The defendant does not claim that his guilty pleas to these offenses were unknowing and involuntary.

3.   The defendant's reliance on Commonwealth v. Najjar, 96 Mass. App. Ct. 569 (2019), is misplaced. In Najjar, we held that a guilty plea should be vacated and the case remanded for an evidentiary hearing where (1) the plea judge failed to advise the defendant of an eight-year minimum mandatory sentence as required by Mass. R. Crim. P. 12 (c), as amended, 482 Mass. 1501 (2019), and (2) the prosecutor misinformed the pro se defendant regarding the defendant's eligibility for good time credit. Id. at 572-574. Here, the defendant was not misled by the prosecutor and the judge clearly informed the defendant that the mandatory sentence was life imprisonment.

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