Opinion
19-P-9
07-09-2020
COMMONWEALTH v. CHRISTOPHER W. JORDAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In December, 2011, the defendant pleaded guilty to three counts of assault with a dangerous weapon in violation of G. L. c. 265, § 15B (b); one count of discharge of a shotgun within 500 feet of a dwelling in violation of G. L. c. 269, § 12E; one count of possession of a shotgun without an FID card in violation of G. L. c. 269, § 10 (h); and one count of witness intimidation in violation of G. L. c. 268, § 13B.
In May, 2018, the defendant moved for a new trial on the ground of ineffective assistance of counsel. That motion was denied without an evidentiary hearing by the same judge who had accepted the defendant's guilty pleas. The defendant appeals the denial, and we now affirm.
Background. In September, 2011, the defendant was involved in an incident at his parents' home in which he fired a shotgun outside the house. At least one shot entered a motor vehicle. Three or four other men were present at the time. As a result of the incident, the defendant was arrested and charged with, among other things, attempted murder. He was initially held for a dangerousness hearing but then released with conditions. On December 12, 20ll, after a finding that the defendant violated those conditions, the defendant was detained and held without bail.
According to the defendant, on December 19, 2011, his attorney visited him in jail. He recommended against going to trial, stating that self-defense was not a viable option and that he was likely to serve a lengthy prison sentence if convicted. Instead, he recommended accepting a prosecution deal where he would plead guilty to lesser offenses and be released immediately. When brought into court on December 23, 2011, though, the plea deal had changed to ninety days committed. The defendant's attorney again recommended accepting the plea deal, indicating that he could later file a motion to revise and revoke and remove the felony convictions; he stated that the prosecutor had agreed to the revise and revoke.
After the defendant was released from custody, he repeatedly asked his attorney about the revise and revoke and the attorney repeatedly indicated that he was going to file it. In February, 2013, the defendant spoke with another attorney who indicated that it was extremely unlikely that a motion to revise and revoke would be granted in the circumstances of his case and that, in any event, the time to file such a motion had passed.
In February, 2014, appellate counsel entered his appearance in the case with respect to a violation of a probation matter. Subsequently, he became involved in pursuing the motion for new trial. According to appellate counsel, he spent a considerable amount of time attempting to contact plea counsel about the matter. Eventually, plea counsel told appellate counsel that he did not agree with the defendant's version of events, did not think he did anything wrong and thought the defendant got an excellent disposition.
On April 26, 2018, the defendant filed a motion for new trial alleging ineffective assistance of counsel. The defendant claimed that his plea counsel (1) failed to assert or advise him of available affirmative defenses of self-defense and defense of another, (2) failed to advise him of employment and housing ramifications of convictions, and (3) falsely represented that he had a plea agreement with the prosecutor, involving a motion to revise and revoke, that would result in the defendant having no criminal record or at least no record of a felony conviction. The motion was supported by the affidavits of the defendant and his parents. After a nonevidentiary hearing, the motion was denied.
No recording or transcript of the plea colloquy was available.
Discussion. On appeal, the defendant contends that the judge abused his discretion in denying the motion without a hearing. "A trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done." Commonwealth v. Lane, 462 Mass. 591, 597 (2012), quoting Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). We will "only disturb the denial of a motion for a new trial where there has been a 'significant error of law or other abuse of discretion.'" Commonwealth v. Hernandez, 481 Mass. 189, 195 (2019), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "We extend 'substantial deference' to a motion judge who was also the plea judge." Commonwealth v. Lys, 481 Mass. 1, 4 (2018), quoting Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016).
To succeed on an ineffective assistance of counsel claim that forms the basis of a defendant's new trial motion, the defendant must prove (1) that his attorney showed "serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then typically, [(2) that] it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Phinney, 446 Mass. 155, 162 (2006), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Moreover, "a judge may rule on the issue or issues presented by [a] motion [for 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). "Whether a substantial issue has been raised depends on the seriousness of the issue and the adequacy of the defendant's showing." Commonwealth v. Britto, 433 Mass. 596, 608 (2001), citing Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981). "If the theory of the motion, as presented by the papers, is not credible or not persuasive, holding an evidentiary hearing . . . will accomplish nothing." Commonwealth v. Goodreau, 442 Mass. 341, 348-349 (2004) (denying motion for evidentiary hearing on motion for new trial).
The defendant argues that his plea counsel was ineffective in that he misrepresented the existence of a revise and revoke agreement with the Commonwealth and discounted meritorious defenses. The judge did not credit the defendant's claims as they were "supported simply by the self-serving affidavit of himself and his parents," filed "[n]early seven years" after the defendant pleaded guilty. The judge was well within his discretion in making such a determination. See Commonwealth v. Sanchez, 476 Mass. 725, 742 (2017), citing Commonwealth v. Leng, 463 Mass. 779, 787 (2012) ("In deciding whether to hold an evidentiary hearing, . . . a judge may consider the affiant's self-interest or bias"); Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015), quoting Commonwealth v. Rzepphiewski, 431 Mass. 48, 55 (2000) ("A judge is not required to accept as true the allegations in a defendant's affidavits even if nothing in the record directly disputes them").
In any event, to succeed on his ineffective assistance claim, the defendant was required to "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Commonwealth v. Henry, 88 Mass. App. Ct. 446, 455 (2015), quoting Commonwealth v. Clark, 460 Mass. 30, 47 (2011). The defendant essentially argues that it would have been rational for him to reject the plea bargain because he had substantial defenses available, namely self-defense and defense of others. See Henry, supra. See also G. L. c. 278, § 8A. However, the defendant's own affidavits undercut these defenses.
According to the defendant's motion filings, on the night of September 1, 2011, he had received a telephone call from someone he had never met; this person challenged him to a fight, indicated that he would be coming to the defendant's house, that if the defendant didn't fight him, he would burn down his house and murder his family. A short time later, the man arrived in a car with three other men; all four walked onto the defendant's front yard. The defendant retrieved his father's shotgun from a locked gun safe and loaded it. He fired two warning shots in the air to dissuade the approaching men. As the men continued to advance, the defendant fired into the intruders' car; the men began to retreat. The men left when the defendant's father came outside and told them that the police had been called.
Given this factual scenario, we cannot say that plea counsel would have been ineffective in advising against proceeding to trial on a theory of self-defense or defense of others. "A defendant must use all proper means to avoid physical combat prior to resorting to deadly force." Commonwealth v. Fisher, 433 Mass. 340, 352 (2001), citing Commonwealth v. Reed, 427 Mass. 100, 102-103 (1998). "If deadly force is used, a self-defense instruction must be given only if the evidence permits at least a reasonable doubt that the defendant reasonably and actually believed that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force." Fisher, supra, quoting Commonwealth v. Hart, 428 Mass. 614, 615 (1999). Apart from verbal threats, there was no indication that the defendant was confronted with individuals who were armed in any way or that they had taken any assaultive action except walking onto the front yard of the home. Moreover, the defendant had time to unlock a gun safe and to load a shotgun. Rather than remain within the safety of his house and call the police, the defendant brought himself out into the conflict.
Citing G. L. c. 278, § 8A, the defendant contends that he had no duty to retreat into his home because he was within the curtilage of his property. Yet, that statute expressly limits use of the defense to "'an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling,' where the person charged 'was in his dwelling at the time of the offense.'" Commonwealth v. Carlino, 449 Mass. 71, 75 (2007), quoting G. L. c. 278, § 8A (where altercation took place outside of home in driveway, defendant not entitled to instruction pursuant to G. L. c. 278, § 8A). See Commonwealth v. McKinnon, 446 Mass. 263, 267 (2006) (G. L. c. 278, § 8A, inapplicable where assault took place on exterior stairs and open porch of house).
As the defendant failed to establish that he had an available substantial ground of defense that would have been pursued, but for the ineffective assistance of his plea counsel, see Commonwealth v. Lastowski, 478 Mass. 572, 577-578 (2018), we discern no abuse of discretion in the denial of the defendant's motion for new trial.
Order denying motion for new trial affirmed.
By the Court (Maldonado, Singh & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 9, 2020.