Opinion
10-P-1412
10-31-2011
COMMONWEALTH v. FREDDY RODRIGUES.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In Commonwealth v. Rodrigues, 75 Mass. App. Ct. 1106 (2009), we vacated an order allowing the defendant's motion for a new trial on a charge of assault by means of a dangerous weapon that was resolved by an admission to sufficient facts in 2005. We remanded for factual findings as to the basis and sufficiency of the judge's determination that he may have failed to provide the immigration warnings required by G. L. c. 278, § 29D.
The Commonwealth now appeals from another order allowing the defendant's motion for a new trial. The order is grounded not in the judge's failure to provide immigration warnings, but in the determination that the defendant's attorney rendered ineffective assistance of counsel by failing to interview the victim before advising the defendant to tender his admission. The narrow question before us is whether the judge erred in allowing the defendant's motion for a new trial upon that ground. We agree with the Commonwealth that the judge erred and reverse the order allowing the defendant's new trial motion.
On remand, the judge rejected the defendant's claim that the immigration warnings were not given. The judge made findings and rulings that it was his customary practice to conduct an oral colloquy advising a defendant of his intra-trial rights and the required immigration warnings. The defendant does not cross-appeal or otherwise challenge the judge's rejection of his claim that the judge failed to provide the required immigration warnings.
The hearing on remand occurred on March 18, 2010, prior to the decision of the United States Supreme Court in Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010), which was rendered on March 31, 2010. At the hearing, the judge was of the view that the determination that he had provided the required immigration warnings also resolved the defendant's ineffective assistance of counsel claim predicated upon defense counsel's failure to advise the defendant of the immigration consequences of his admission. Consequently, the judge made no factual findings bearing on that question. That ground remains undecided. See Commonwealth v. Clarke, 460 Mass. 30, 45 (2011) (holding that Padilla is to be applied retroactively on collateral review of guilty pleas obtained after enactment of Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 [effective April 1, 1997]).
At the hearing, the defendant informed the judge that if the Commonwealth were to agree to the allowance of his new trial motion, he would preserve 'the integrity of [the] admission' by again entering a plea so long as the disposition of the offense would be a 'guilty[,] file[d],' as to which the defendant would not face an adverse immigration consequence. See Commonwealth v. Clarke, 460 Mass. 30, 47 n.18 (2011). The Commonwealth was not agreeable to that proposed resolution.
Even assuming the correctness of the judge's factual findings, the defendant has failed to establish that, in the circumstances, defense counsel's failure to interview the victim was manifestly unreasonable and deprived the defendant of an available, substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
We 'must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.' Strickland v. Washington, 466 U.S. 668, 690 (1984). So viewed, defense counsel's failure to interview the victim prior to advising the defendant regarding his entering an admission to the charge was not manifestly unreasonable. To conclude otherwise ignores the reality of the defendant's situation at the time of the admission: the driving factor behind his admission was his desire to be released from custody immediately. It is undisputed that at the time of the defendant's admission, he had been held in custody for nine days on a $500 cash bail that he was unable to post. The defendant was fearful that he would lose his job if held further. The case was before the court for a pretrial conference, and no trial date was on the immediate horizon. Only a short time before the defendant proffered his admission, the judge had refused defense counsel's motion to modify the bail. Given the defendant's custody status and motivation to be released from custody, his desire to admit to sufficient facts notwithstanding that defense counsel had not yet interviewed the victim is hardly surprising. Moreover, even assuming that the victim would have been willing to discuss the matter with defense counsel, postponing an admission to a future date would not have advanced the defendant's desire to be released.
The defendant's bail review in Superior Court had been denied.
Indeed, the defendant's supporting affidavit never asserts that he would not have admitted to the charge, only that he 'would have tried other avenues of relief.'
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Likewise, the defendant failed to establish that the asserted deficiency of defense counsel deprived him of an available, substantial ground of defense. 'Where a claim of ineffective assistance is directed to counsel's representation incident to a guilty plea, the second prong of the Saferian test requires a defendant to show 'that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Commonwealth v. Pike, 53 Mass. App. Ct. 757, 762 (2002), quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985). Even at this juncture the defendant has failed to establish a reasonable probability that but for defense counsel's failure to interview the victim he would not have proceeded with an admission on that day. See Commonwealth v. Mahar, 442 Mass. 11, 15 (2004). Nothing in the defendant's submissions, or those of the victim, establish a reasonable probability that the Commonwealth would have failed in proving the case had it proceeded to trial. The defendant's affidavit does not proclaim his innocence, nor does that of the victim. Indeed, the defendant's claim that counsel was ineffective rests on the bare premise that had counsel interviewed the victim prior to the admission he would have learned that she 'never planned on testifying.' Such a premise fails for the reason, if no other, that nothing prevented the Commonwealth from compelling the victim's testimony by subpoena or proving its case by other available means. The victim possessed no privilege not to testify.
Accordingly, we reverse the order allowing the defendant's motion for a new trial.
Order allowing motion for new trial reversed.
By the Court (Grasso, Brown & Kantrowitz, JJ.),