Opinion
14-P-1211
06-10-2015
COMMONWEALTH v. SENOVIA POWELL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
On May 27, 1997, the defendant, Senovia Powell, pleaded to facts sufficient to support a finding of guilt on four charges: assault and battery on a public employee in violation of G. L. c. 265, § 13D; assault and battery by means of a dangerous weapon in violation of G. L. c. 265, § 15A; disorderly conduct in violation of G. L. c. 272, § 53; and refusal to produce license and registration in violation of G. L. c. 90, § 25. These charges were continued without a finding for three months and then dismissed. On March 13, 2014, the defendant filed a motion to vacate her admissions, which was denied. The defendant now appeals from the denial of her motion on the basis of ineffective counsel pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010). She contends that the motion judge improperly (1) discredited her testimony, (2) excluded defense witness testimony, and (3) exhibited bias with regards to his questioning of the defendant. We affirm.
The defendant's motion to withdraw her guilty pleas alleged that counsel failed to advise her of the immigration consequences of pleading guilty. This claim rested on the defendant's own affidavit and her testimony during the evidentiary hearing. There was no affidavit or testimony from plea counsel, merely an affidavit from her current counsel containing hearsay that plea counsel had no memory of the defendant's case. The motion judge, who was also the plea judge, found that the defendant was not credible, particularly in light of the absence of an affidavit or testimony from plea counsel, the defendant's acknowledgement that she paid minimal attention to the information being provided during the plea colloquy, and her limited memory of her conversation with counsel.
"A motion to withdraw a guilty plea is treated as a motion for new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 721-722 (2012). A motion for new trial is directed to the sound discretion of the motion judge. See Commonwealth v. Scott, 467 Mass. 336, 344 (2014). We review a judge's denial of a motion for new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Chleikh, supra at 722, quoting from Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006).
We discern no cause to disturb the judge's decision to deny the defendant's motion to withdraw the guilty pleas. See Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 50 (1997) (properly denied motion when judge exercised his discretion to repudiate defendant's "factual assertions as unworthy of belief"). The absence of an affidavit or testimony from plea counsel is significant. Also, the judge could consider as incredible the defendant's testimony that she had either disregarded or forgotten the information communicated to her by counsel and the judge, but did recall counsel's failure to provide advice regarding immigration consequences. See Commonwealth v. Grant, 426 Mass. 667, 673 (1998) (recognizing the judge's "right to reject as not credible the defendant's self-serving, conclusory affidavit"). This credibility finding was well within the judge's discretion, under Mass.R.Crim.P. 30(c)(3). See Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014), quoting from Scott, supra ("[T]he judge who heard the witnesses testify is the 'final arbiter on matters of credibility'"); Commonwealth v. Ciampa, 51 Mass. App. Ct. 459, 463 (2001), quoting from Commonwealth v. Rzepphiewski, 431 Mass. 48, 55 (2000) (a motion judge, who is also a plea judge, is "in a superior position to assess the credibility of the defendant's claim" that she had not received advice regarding immigration consequences).
The defendant's testimony was also at odds with the plea tender sheet and certification. See Commonwealth v. Goodreau, 442 Mass. 341, 351 n.6 (2004).
The judge also acted within his discretion when he considered the affidavits, but not the oral testimony of the defendant's sister and brother-in-law during the evidentiary hearing, given his findings on the defendant's credibility regarding the immigration advice. See Commonwealth v. Meggs, 30 Mass. App. Ct. 111, 114 (1991) ("recogniz[ing] that the decision whether to decide the motion on the basis of affidavits or to hear oral testimony is a matter within the discretion of the judge").
Finally, "[o]ur cases permit a judge, who in these types of cases is the fact finder, to question witnesses in order to obtain clarification or eliminate confusion." Adoption of Norbert, 83 Mass. App. Ct. 542, 547 (2013). Here, the judge questioned the defendant to clarify the state of her knowledge and her decision-making process at the time of the plea. Compare ibid. While he played an active role in questioning the defendant, the judge was not so intrusive that he impaired defense counsel's ability to develop the defendant's case. Nor were his questions reflective of actual or apparent bias or prejudice against the defendant. See Care & Protection Summons, 437 Mass. 224, 239-240 (2002), quoting from Liteky v. United States, 510 U.S. 540, 551 (1994) ("Not subject to deprecatory characterizations as 'bias' or 'prejudice' are opinions held by judges as a result of what they learn in earlier proceedings"). We are mindful of the importance of impartiality, including the appearance of impartiality, and the dangers of appearing to prejudge the defendant. However, even if the judge could have been more restrained, we reject the defendant's contention that the manner in which he conducted the hearing violated due process.
4. Conclusion. For the reasons articulated above, we affirm the order denying the defendant's motion for new trial.
So ordered.
By the Court (Berry, Kafker & Cohen, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 10, 2015.