COMMONWEALTH v. CHRISTOPHER MACLAGAN (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the denial of his motion to withdraw his prior admissions to sufficient facts, based on the purported ineffective assistance of his plea counsel. The defendant primarily argues that his plea counsel made false statements to him that induced him to forego trial on two counts of assault and battery on a family or household member, and instead to admit to sufficient facts, resulting in continuance of the charges without findings. We agree that the defendant's motion papers were sufficient to merit an evidentiary hearing as to whether counsel was ineffective, and therefore vacate the denial of the defendant's motion and remand to the District Court.

Background. The charges at issue stemmed from two altercations between the defendant and his ex-wife, on successive days. The first occurred on August 11, 2018, when, according to the defendant's ex-wife, the defendant assaulted her in his bedroom after she confronted him about seeing another woman. The second occurred the following day, when the defendant's ex-wife picked up their children at a gym. According to the ex-wife's police statement, the defendant followed her into the gym parking lot and lunged at her while she was sitting in her car. She claimed that she then fled the vehicle and that the defendant “charged after her and began striking her with a closed fist.” The defendant appeared for trial on both charges on March 5, 2020. Instead of proceeding to trial, however, the defendant admitted to sufficient facts, and the judge continued the cases without findings for one year, and imposed probation.

Approximately one year later, the defendant filed a motion for a new trial, arguing that his plea counsel was ineffective. Among other things, the defendant argued that his plea counsel made three material misrepresentations to him that caused him to enter his admissions.¹ First, the defendant averred that his plea counsel told him (allegedly incorrectly) that a copy of a surveillance video of the events in the gym parking lot might not be admitted at trial, because the prosecutor claimed that plea counsel had not timely disclosed it.² The surveillance video was critical to the defendant's defense, because it appears to directly contradict the ex-wife's allegations as to what happened in the parking lot. Second, when the defendant inquired about a continuance of the trial date (to increase the likelihood the video would be admitted), his plea counsel purportedly told him (falsely) that a continuance was not possible. Finally, the defendant claimed that his plea counsel falsely told him that the Commonwealth was seeking jail time. The defendant argued that his plea counsel's falsities, in combination, led him to believe that he had to go to trial that day, that his key evidence might not come in, and that if convicted he could be incarcerated. This induced him to forego trial and to admit to sufficient facts despite having a substantial defense.³

The motion judge, who was also the plea judge, held a nonevidentiary hearing on June 15, 2021. He denied the defendant's motion without further comment on September 14, 2021, and the defendant timely appealed.

Discussion. A motion for a new trial may be denied without an evidentiary 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). “In determining whether a substantial issue exists, 'a judge considers the seriousness of the issues raised and the adequacy of the defendant's showing'” (citation omitted). Commonwealth v. Upton, 484 Mass. 155, 162 (2020). “[T]he defendant's submissions 'need not prove the [motion's] factual premise ․ but they must contain sufficient credible information to cast doubt on the issue'” (citation omitted). Id. See also Commonwealth v. Denis, 442 Mass. 617, 629 (2004). We review a judge's decision for an error of law or other abuse of discretion. See Upton, supra.

Here, the defendant argued that his plea counsel rendered ineffective assistance by making a series of misrepresentations that induced the defendant to forego a substantial defense and to admit to sufficient facts. “A claim of ineffective assistance of counsel ․ readily qualifies as a serious issue.” Denis, 442 Mass. at 629. Accordingly, the question is whether the defendant made an adequate showing to cast doubt on his counsel's effective assistance. Doing so requires the defendant to present sufficient credible information that his counsel's performance “fell 'measurably below that which might be expected from an ordinary fallible lawyer,' and that this performance 'likely deprived the defendant of an otherwise available, substantial ground of'” defense. Commonwealth v. Licata, 412 Mass. 654, 661 (1992), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

As to counsel's performance, the defendant's affidavit regarding what plea counsel said to him raises potentially meritorious issues. If the defendant's sworn allegations are true, counsel's representations to him were contrary to the plea judge's statement to counsel that “if you need more time[,] I will give you more time.”⁴ Furthermore, plea counsel's purported statement that the Commonwealth was seeking jail time also could have been a misrepresentation, as the prosecutor stated at sidebar that the Commonwealth sought only probation.⁵ Although plea counsel's statement about the video's admissibility was technically correct, the combination of the three alleged statements -- if indeed they were made -- would “raise serious issues as to the adequacy of [counsel's] interest in preparing and conducting the defense.” Licata, 412 Mass. at 660. Unfortunately, despite the efforts of defendant's appellate counsel, we do not have an affidavit from plea counsel that addresses the defendant's allegations.⁶ On this record, then, the defendant has raised a substantial issue concerning his plea counsel's performance that merited an evidentiary hearing.

We are of the same mind concerning the prejudice requirement. The defendant met his “baseline” burden by averring that, had his counsel properly advised him, he would “have decided to go to trial because [he] felt that [he] could win” with the exculpatory video. See Commonwealth v. Lys, 481 Mass. 1, 7 (2018). That video lends credence to the defendant's averment -- it indeed appears to be quite exculpatory, directly contradicting what the ex-wife related to the police regarding the second of the alleged assaults. Given the exculpatory nature of this evidence, it is not unreasonable to believe that the defendant might have insisted on going to trial -- and would have acted reasonably in doing so -- if his counsel had not misinformed him as alleged. See id. (prejudice requires “sufficient 'credible facts' [showing] a reasonable probability that a reasonable person ․ would have gone to trial if given constitutionally effective advice”). The defendant has therefore raised a substantial issue as to prejudice. Cf. Commonwealth v. Chetwynde, 31 Mass. App. Ct. 8, 14-15 (1991) (false representations to defendant inducing guilty plea supported prejudice finding).⁷

We acknowledge that a judge has considerable discretion in deciding whether to hold an evidentiary hearing. See Commonwealth v. Meggs, 30 Mass. App. Ct. 111, 114 (1991). A judge also has discretion in deciding whether to discredit a defendant's affidavit, in connection with a motion for a new trial. See Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015). But “it is important that the judge provide some reasons for” doing so, to “assist [us] in understanding whether [he] acted within [that] discretion.” Id. In the absence of such findings and considering the circumstances here -- involving apparently exculpatory evidence and the defendant's (thus far unrebutted) averments that plea counsel misrepresented to him -- we are of the view that an evidentiary hearing was required. See Licata, 412 Mass. at 660-661. We stress that we express no view as to the ultimate outcome; the defendant “has not yet proved that he received ineffective assistance of counsel.” Id. at 662. We accordingly vacate the denial of the defendant's motion, and remand to the District Court for proceedings consistent with this memorandum and order.⁸

So ordered.

FOOTNOTES

1.   As discussed further infra, the defendant also argued that his plea counsel rendered ineffective assistance by failing to disclose, and being unprepared to offer at trial, a variety of evidence that the defendant believed was exculpatory.

2.   Plea counsel contested the prosecutor's claim. He stated at sidebar, prior to the plea colloquy, that he had disclosed the video at a pretrial conference.

3.   In support of his motion the defendant offered, among other things, a copy of the video and affidavits from himself and his new counsel. New counsel's affidavit detailed the repeated but unsuccessful efforts he had made to secure plea counsel's cooperation.

4.   The Commonwealth argues that the plea judge's statement is a point in its favor. But the defendant avers that he could not hear the sidebar conversation between the judge and counsel, and therefore could not have known whether plea counsel misrepresented what the judge had said. This is another matter that could be explored at an evidentiary hearing.

5.   The Commonwealth argues that the defendant's tender of plea forms and an affidavit from his father contradict what the defendant says plea counsel told him about jail time, because both indicate that the Commonwealth sought probation. We disagree. In his affidavit, the defendant's father said that plea counsel explained to him (not the defendant) that “he had negotiated a deal where [the defendant] would not serve any jail time.” Importantly, there is no indication that plea counsel so informed the father before the defendant decided to forego trial. This same problem exists with respect to the defendant's plea forms -- that is, there is nothing indicating that the defendant saw the tender of plea forms before deciding to waive trial and to admit to sufficient facts.

6.   See Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551 (2014) (“where successor counsel file[s] affidavits attesting to plea counsel's lack of cooperation ․ the lack of an affidavit cannot [alone] ․ defeat[ ] a claim of ineffective assistance”).

7.   While the defendant has raised a substantial issue concerning his counsel's alleged misrepresentations, we note that his motion papers did not do so with respect to plea counsel's other purported errors. The defendant puts forth a litany of facts that he claims plea counsel did not timely disclose and was not prepared to use at trial -- including, for example, text messages from the defendant's ex-wife and other communications that the defendant claims show that his ex-wife was the aggressor and was lying, and motivated in part by an ongoing custody dispute over their children. The evidence in question, however, would not have had to be disclosed by defense (plea) counsel, if counsel chose to save it for impeachment. See Reporters' Notes to Rule 14 (a) (1) (B), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 196 (LexisNexis 2021) (“defense [need only] provide discovery of the statements of its own witnesses, not all witnesses”). Indeed, the information in question may well have been best used for that purpose, and saved by counsel as a “tactical choice” to confront the victim on cross-examination. See Commonwealth v. Holland, 476 Mass. 801, 812 (2017). The defendant's motion for a new trial materials offered only supposition that his plea counsel was unprepared to use the evidence meaningfully and appropriately.

8.   On remand, the defendant may wish to supplement his new trial motion to challenge whether his admissions to sufficient facts were properly accepted. “An admission to sufficient facts ․ 'triggers the same safeguards required when a defendant offers to plead guilty.'” Tirado v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 472 Mass. 333, 339 (2015), quoting Commonwealth v. Lewis, 399 Mass. 761, 763 (1987). Thus, “[a] judge may accept ․ [such] an admission ․ only after first determining that it is made voluntarily with an understanding of the nature of the charge and the consequences of the ․ admission.” Mass. R. Crim. P. 12 (a) (3), as amended, 482 Mass. 1501 (2019). In other words, an admission may be taken “only where 'the contemporaneous record contains an affirmative showing that the defendant's plea was intelligently and voluntarily made.'” Commonwealth v. Wentworth, 482 Mass. 664, 679 (2019), quoting Commonwealth v. Scott, 467 Mass. 336, 345 (2014). “The requirement that the defendant's plea be made intelligently may be met '(1) by the judge explaining to the defendant the elements of the crime; (2) by counsel's representation that [he] has explained to the defendant the elements he admits by his plea; or (3) by the defendant's stated admission to facts recited during the colloquy which constitute the unexplained elements.'” Commonwealth v. Furr, 454 Mass. 101, 107 (2009), quoting Commonwealth v. Correa, 43 Mass. App. Ct. 714, 717 (1997). The first two methods do not appear in the colloquy. Regarding the third, after the Commonwealth read the facts to which the defendant was supposedly admitting, the defendant twice stated: “That's not true, your Honor.” In response to the first such statement, the judge asked only whether the defendant “inten[ded] to admit sufficient evidence.” The judge did not inquire of the defendant at all after the defendant said, as to the second alleged crime, that the stated facts were untrue.