Opinion
16-P-823
06-05-2017
COMMONWEALTH v. Jean Carlos ALMODOVAR.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On June 17, 2000, the defendant, Jean Carlos Almodovar, pleaded guilty to one count of murder in the second degree, one count of unlawful possession of ammunition, and one count of unlawful possession of a firearm. He now appeals from the order denying his third motion for a new trial, arguing that he received ineffective assistance of counsel concerning his competency to plead guilty, he was improperly denied an evidentiary hearing, and his constitutional rights were violated. We affirm.
A motion to withdraw a guilty plea is treated as a motion for a new trial. Commonwealth v. Furr, 454 Mass. 101, 106 (2009).
Background. The motion judge (who was not the plea judge) found the following facts. On October 26, 1999, Holyoke police officers responded to 605 Southbridge Street, where they found the victim of an apparent shooting. Edgar Laboy, who told police he had been with the victim during the shooting, identified the defendant and his uncle as the assailants from two separate photographic arrays. Laboy stated that the defendant's uncle shot the victim with a handgun, and that while the victim was laying on the ground, the defendant then shot him with a sawed-off shotgun.
After his plea in June of 2000, the defendant first filed a motion for a new trial on October 25, 2002, in which he claimed ineffective assistance of counsel. The motion was denied and, on appeal, a panel of this court affirmed the order in an unpublished decision issued pursuant to our rule 1:28. See Commonwealth v. Almodovar, 60 Mass. App. Ct. 1126 (2004). The defendant filed a second motion for a new trial on April 2, 2013, which was subsequently withdrawn. On October 9, 2015, the defendant filed his third motion for a new trial, which was denied.
Discussion. 1. Waiver. The defendant raises his competency and constitutional claims for the first time in his third motion for a new trial. Any grounds for relief not raised by the defendant in his original or amended motion for a new trial are "waived unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion." Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001). The motion judge correctly determined that both of the defendant's claims are waived under rule 30(c)(2) as they could have been raised in his original motion, and the motion judge, in the exercise of discretion, declined to reach the issue. See Commonwealth v. Randolph, 438 Mass. 290, 293 (2002).
2. Merits. Notwithstanding waiver, we elect to review each claim for a substantial risk of a miscarriage of justice. Id. at 294. As for the competency claim, in his motion, the defendant claims that while awaiting trial, he had trouble sleeping and was experiencing auditory hallucinations. To support his claim, he submitted medical records with his motion indicating that he had a history of attention deficit hyperactivity disorder and had been diagnosed with depression. The records showed no evidence of any other psychiatric history. A few weeks prior to pleading guilty, a mental health services doctor stated that the defendant was "feeling better," was "calm and appropriate," and denied suicidal ideation and hallucinations, and increased his prescription for Trazodone.
The transcript of the defendant's plea colloquy reflects that he had "a rational as well as factual understanding of the proceedings" against him, as well as the "sufficient present ability to consult with" and reasonably understand his lawyer. Commonwealth v. Chatman, 473 Mass. 840, 847 (2016), quoting from Commonwealth v. Bynum Harris, 468 Mass. 429, 443 (2014) (articulating proper standard for postconviction motions challenging competency). He informed the plea judge that he had not been treated by a doctor within the last two years and was not under the influence of alcohol or any drugs. He also stated that he understood that he would be pleading guilty to murder in the second degree and the other remaining charges, that the maximum penalty was life in prison, and that he had no guarantee of being paroled. The defendant stated that he had spoken with his lawyer about pleading guilty, and all of his rights and potential defenses at trial. Defense counsel stated that it was his opinion that the defendant understood the rights he was giving up by pleading guilty. Finally, the plea judge called for a recess to allow the defendant to speak to his grandmother about the plea, to ensure he fully understood the decision he was making.
Because nothing in the record suggests that the defendant was incompetent at the time he entered his plea beyond the defendant's own affidavit, no competency hearing was necessary, as there was not a substantial question of possible doubt as to whether the defendant was competent to plead guilty. See Commonwealth v. Robbins, 431 Mass. 442, 448-449 (2000). Accordingly, the defendant's claim that counsel was ineffective for not raising an issue with the defendant's competency fails, as does his contention that it was an abuse of discretion to deny him an evidentiary hearing. See Commonwealth v. Vinton, 432 Mass. 180, 183 n.2 (2000) ("A judge may rule on a motion for a new trial without an evidentiary hearing if no substantial issue is raised by the motion or accompanying affidavits").
Even if the defendant truly did have a mental illness, the presence of a mental illness, by itself, does not require a competency hearing or render a defendant incompetent. Commonwealth v. Robbins, 431 Mass. 442, 448 (2000).
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Finally, the defendant contends that his sentence of life imprisonment with the possibility of parole violates the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights. The Supreme Judicial Court has held that such a sentence imposed upon a juvenile does not violate the Eighth Amendment or art. 26, as the possibility of parole satisfies the necessary constitutional requirements. Commonwealth v. Okoro, 471 Mass. 51, 57-58, 62 (2015). Therefore, the defendant's claim is without merit.
Order denying third motion for new trial affirmed.