COMMONWEALTH v. JORGE (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Andrew Jorge, appeals from his convictions, after a Superior Court jury trial, for breaking and entering during the daytime and four other related charges stemming from the same incident. He principally claims that the trial judge erred by denying his motion for sanctions against the Commonwealth for violating a discovery order. In a consolidated appeal, Jorge challenges the denial of his motion for a new trial based on ineffective assistance of counsel. We affirm the convictions and the order denying the motion.

Background. The jury could have found that on September 29, 2016, police responded to a 911 call from a witness who reported that several men were attempting to break into the apartment building where she lived. The resident witnessed the men sneak around to her back door, heard the glass window in the door shatter, and immediately fled out the front entrance of her second-floor apartment before she heard anyone open the back door or walk up the back stairs to the apartment.

An officer arrived at the scene and discovered Jorge and three other men in back of the building, carrying several items apparently stolen from the apartment. After attempting to flee, Jorge was arrested and searched; the officer discovered a loaded handgun, a crowbar, and gloves on Jorge's person.

The Commonwealth offered Jorge a plea agreement which would have seen him serve three years, but Jorge rejected the offer and pleaded not guilty. He was found guilty on five charges: (1) breaking and entering in the daytime with intent to commit a felony, thereby putting a lawful occupant in fear (G. L. c. 266, § 17); (2) possession of a firearm during the commission of a felony (G. L. c. 265, § 18B); (3) possession of burglarious instruments (G. L. c. 266, § 49); (4) carrying a firearm without a license (G. L. c. 269, § 10 [a]); and (5) carrying a loaded firearm without a license (G. L. c. 269, § 10 [n]). He was sentenced to State prison for a total of six years.

Discussion. 1. Motion for sanctions. On Jorge's motion, a judge issued an order prohibiting the Commonwealth from test firing the gun without first allowing Jorge the opportunity to have his own expert present. Unaware of that order, the State police fired the gun without giving the required notice. Jorge filed a motion for sanctions, seeking either dismissal of the charges or suppression of the firearm evidence, but the motion was denied after an evidentiary hearing.

On appeal, Jorge claims that the judge, in denying the motion, erred by finding facts not supported by the evidence. We review a judge's preliminary findings of fact for clear error. See Commonwealth v. Evelyn, 485 Mass. 691, 696 (2020).

First, Jorge argues that the judge erred by mischaracterizing the testimony of the trooper who conducted the test fire of the gun. Jorge asserts that, contrary to the judge's finding, the trooper never conclusively stated that no alterations were needed to fire the gun; instead, the testimony of the trooper was that he is required to note when alterations are needed to fire the gun, and that he made no notes to that effect in this case. We think that the judge's characterization was based on a fair inference from the trooper's testimony. More importantly, though, the judge's decision to deny sanctions was not dependent on any affirmative finding that the gun was not altered. Rather, the burden was on Jorge “to make an evidence-based showing of a reasonable possibility that the handgun was inoperable before the initial ballistics test was conducted.” Commonwealth v. Sanford, 460 Mass. 441, 448 (2011). The judge permissibly concluded that Jorge had made no such showing.

Second, Jorge might still have been entitled to a remedy had he shown that any loss or destruction of evidence was the result of the Commonwealth's recklessness or bad faith. See Sanford, 460 Mass. at 450. With respect to this point, Jorge contends that the judge impermissibly relied on the unsworn representations of the prosecutor to find that her failure to send the discovery order to the State police was merely negligent. Again, however, the burden was not on the Commonwealth to show that the violation resulted from mere negligence. Rather, the burden was on Jorge to establish that the Commonwealth's violation was the result of bad faith or recklessness, and, wholly apart from the prosecutor's representations, Jorge presented no evidence to support such a finding. See id. In any event, a judge is not bound by the law of evidence when deciding preliminary questions regarding admissibility, see Evelyn, 485 Mass. at 706, and, when doing so, “[t]he court may consider, in appropriate circumstances, representations of counsel,” Mass. G. Evid. § 104(a) note (2022).

2. Motion for a new trial. While his direct appeal was pending, Jorge filed a motion for a new trial, claiming that his trial counsel was ineffective. In an accompanying affidavit, Jorge alleged that he rejected a three-year plea offer because his trial counsel “convinced [him] that [he] had viable defenses” to two of his charges if he went to trial. Specifically, he claimed trial counsel advised him “that it would be a defense to the charge of breaking and entering that [the witness] ran from her apartment after hearing the breaking of glass but prior to anyone entering her apartment,” and “that it would be a defense to the charge of possession of a firearm [during] a felony that the firearm found in [Jorge's] possession was taken from [the witness's] apartment and not used in the breaking and entering.” Jorge's affidavit further stated that had he known these defenses were not viable, he would have accepted the plea agreement. Jorge's trial counsel also submitted a brief affidavit which neither confirmed nor denied Jorge's allegations about the legal advice counsel had offered. A motion judge (who was not the trial judge) denied the motion without an evidentiary hearing.

On appeal, Jorge claims that the motion judge abused his discretion in failing to hold an evidentiary hearing. Additionally, he argues that his motion should have been granted because his trial counsel's advice was based on a misunderstanding of the law. Where the motion judge “did not preside at trial and did not conduct an evidentiary hearing, as happened here, we ․ review the motion judge's decision de novo.” Commonwealth v. Watkins (No. 1), 486 Mass. 801, 803-804 (2021).

A judge may rule on a motion for a new trial “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). “Assessment of whether the motion and supporting materials suffice to raise a ‘substantial issue’ involves consideration of 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 judge is not required to credit a defendant's affidavit or to hold an evidentiary hearing on a motion for a new trial, even where nothing in the trial record directly contradicts the affidavit. See Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003). Cf. Commonwealth v. Rzepphiewski, 431 Mass. 48, 55-56 (2000).

Jorge is correct to state that credible affidavits alleging ineffective assistance of counsel raise a constitutional concern and therefore a substantial issue. See Commonwealth v. Denis, 442 Mass. 617, 629 (2004). Here, however, the motion judge declined to credit Jorge's affidavit and thus concluded that there was an inadequate evidentiary showing to raise a substantial issue. We see no reason to disagree with this determination. Jorge's self-serving statements in his affidavit need not be credited, especially where his trial counsel's accompanying affidavit did not confirm his version of events. See Goodreau, 442 Mass. at 354 (“trial counsel's failure to confirm [defendant's] points speaks volumes”); Rzepphiewski, 431 Mass. at 55-56. We also agree with the Commonwealth that the fact that counsel used certain legal theories at trial does not meaningfully substantiate Jorge's claim that counsel previously advised him those theories were viable defenses. Counsel may simply have had nothing else to argue once Jorge chose to reject the plea agreement and go to trial. Therefore, there was no need for an evidentiary hearing, and we need not consider whether the allegations in Jorge's affidavit, if true, would establish ineffective assistance of counsel.

To the extent Jorge argues that counsel's trial strategy was ineffective, see Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994) (“[a] claim of ineffective assistance may be resolved on direct appeal of the defendant's conviction when the factual basis of the claim appears indisputably on the trial record”), we see no basis for a new trial. Jorge has not attempted to demonstrate how the trial strategy, even if it was manifestly unreasonable, “deprived [him] of an otherwise available, substantial ground of defence.” Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

3. Sufficiency of the evidence. At the close of the Commonwealth's evidence, and again at the close of all evidence, Jorge's trial counsel moved for a required finding of not guilty. As mentioned above, his argument was that the evidence was insufficient to convict Jorge (1) of breaking and entering under G. L. c. 266, § 17, absent evidence that the witness was still inside the apartment when Jorge entered; or (2) of possessing a firearm during a felony, absent evidence that Jorge was armed at the time of entry. Both motions were denied.²

Jorge now argues that if, instead of performing deficiently by advancing these theories, trial counsel was legally correct in advancing them, then the evidence on the two charges mentioned above was insufficient. Jorge does not, however, advance any argument that the theories were correct. To the contrary, at oral argument he stated his position that they were “plainly incorrect.” In short, Jorge does not argue that, under a correct view of the law, the evidence was insufficient. Accordingly, we need not consider the sufficiency issue further.

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   We recognize that this argument was raised and rejected during several other points at trial, and our analysis and conclusion is intended to reach these claims of error, as well.