Opinion
16-P-913
03-07-2017
COMMONWEALTH v. Fernando SANTOS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Fernando Santos, was convicted of forcible rape of a child, G. L. c. 265, § 22A, and three counts of indecent assault and battery of a child under the age of fourteen, G. L. c. 265, § 13B. See Commonwealth v. Santos , 465 Mass. 689 (2013) (affirming convictions on direct appeal). He appeals from the denial of his motion for a new trial on the grounds ineffective assistance of counsel, as well as of his motions for appointment of postconviction counsel and for postconviction discovery under Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001). We affirm.
The defendant was also charged with aggravated rape and abuse of a child, G. L. c. 265, § 23A, but was found not guilty.
Standard of review . We review the judge's decisions on the various motions for abuse of discretion. See Mains v. Commonwealth , 433 Mass. 30, 35 (2000) (motion for appointment of postconviction counsel); Commonwealth v. Sharpe , 454 Mass. 135, 146 (2009) (motion for new trial); Commonwealth v. Camacho , 472 Mass. 587, 598 (2015) (postconviction discovery motion). An abuse of discretion exists only where the judge erred as a matter of law or "made ‘a clear error of judgment in weighing’ the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L . v. Commonwealth , 470 Mass. 169, 185 n.27 (2014) (quotation omitted).
Discussion . Motions for postconviction discovery and for a new trial . The defendant contends that the motion judge, who was also the trial judge, abused her discretion in denying the motions for postconviction discovery and for new trial because "[trial] counsel inexplicably neglected to obtain the hospital record of the pain meds [sic ] [the boy] was prescribed and request a toxicology for narcotics on the two blood samples taken from the boy." See Mass.R.Crim.P. 30(b), (c)(4).
The record, however, does not support his claim. The trial court docket indicates that on March 16, 2010, medical records were ordered to be "filed in [the] [c]lerk's office, and to be made available to both counsel for viewing." The clerk's office received the records from Baystate Medical Center on March 23, 2010. The records were provided. There is no showing that counsel failed to review the records. Nor does the defendant provide any indication that the information he seeks (what type of pain medication, if any, the boy's doctor prescribed to the boy after his surgery in the days before the crime) cannot be found in these records. The defendant offers his own assessment of what trial counsel did not do, but without an "affidavit from trial counsel, the defendant's assertions about what counsel did not do [are] speculative and need not be considered" by the trial judge. Commonwealth v. Rice , 441 Mass. 291, 304 (2004). Therefore, the motion judge did not err in denying the motions for postconviction discovery.
Additional records were received on August 30, 2010, from the Family Advocacy Center of Baystate Children's Hospital after the allowance of the defendant's motion pursuant to Commonwealth v. Dwyer , 448 Mass. 122, 145-146 (2006).
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The motion for new trial on the grounds of ineffective assistance of counsel was properly denied for the same reason. There has been no showing that there was "serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian , 366 Mass. 89, 96 (1974).
Motion for appointment of counsel . The defendant also appeals from the denial of his motion for appointment of postconviction counsel. See Mass.R.Crim.P. 30(c)(5). The decision to appoint counsel to an indigent defendant on a postconviction motion for a new trial rests in the sound discretion of the motion judge. See Parker v. Commonwealth , 448 Mass. 1021, 1023 (2007) ; Mass.R.Crim.P. 30(c)(5). The defendant has not demonstrated any basis upon which to conclude that the decision not to appoint counsel was an abuse of discretion.
Orders denying motions for new trial, appointment of postconviction counsel, and postconviction discovery affirmed .