Com. v. Murphy

895 N.E.2d 764

73 Mass. App. Ct. 57

COMMONWEALTH v. Kashmoni MURPHY.

No. 06-P-969.

Appeals Court of Massachusetts, Essex.

Argued December 18, 2007.

Decided October 30, 2008.

Karen Logee Swenson, Boston, for the defendant.

David F. O'Sullivan, Assistant District Attorney, for the Commonwealth.

Present: DUFFLY, GRAHAM, & KATZMANN, JJ.

DUFFLY, J.

In 1998, the defendant pleaded guilty to several offenses including home invasion, and five counts of armed assault in a dwelling, which are the subject of this appeal.¹ The disposition as to these offenses was straight probation: concurrent, three-year probationary terms.² He later was found to be in violation of his probation and received the mandatory minimum sentence of from twenty years to twenty years and one day on the home invasion charge, and concurrent life terms (the maximum sentence) for each count of armed assault in a dwelling.³

This is the defendant's appeal from the denial without a hearing of his second motion to withdraw his guilty pleas and for a new trial, pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). He asserts several claims of error.⁴ We address here his claim that counsel (motion counsel) was ineffective for failing to appeal the denial of his first new trial motion and the issue this claim implicates: whether the defendant's plea was not intelligent and voluntary in the constitutional sense because the defendant was not fully informed of the consequences of his plea. We agree that Commonwealth v. Rodriguez, 52 Mass.App.Ct. 572, 755 N.E.2d 753 (2001), requires that "[a] defendant who pleads to straight probation must be informed on the record, in open court, of the minimum mandatory and maximum sentences he faces upon a violation of the terms of probation," id. at 576, 755 N.E.2d 753, and that he was not so informed. However, we conclude that the defendant has not established that the omission created a substantial risk of a miscarriage of justice and affirm. We do not address the claims raised in connection with the defendant's appeal from the denial of his second motion for new trial, as they are subsumed in our decision, or have been waived.

1. Procedural background. The defendant was charged in indictments alleging that he and an armed accomplice broke into a home in the city of Lynn, and assaulted and robbed the three women inside. As noted above, he pleaded guilty and served his committed time on the charges of armed robbery (not implicated in this appeal) and was released. The defendant was serving his three-year term of straight probation when, in April, 2003, he was found to have violated probation and was given the minimum mandatory sentence (twenty years) on the home invasion charge and the maximum possible sentences (imprisonment for life) on each of five counts of armed assault in a dwelling.

In October, 2003, the defendant, now represented by motion counsel, filed a motion to withdraw his guilty pleas and for a new trial, pursuant to Mass.R.Crim.P. 30(b). He claimed that his pleas were not voluntary and intelligent because he was not adequately informed of the consequences of them. Specifically, he cites the judge's failure to convey that the minimum and maximum sentences attendant to the charged crimes remained applicable although he received straight probation on them, which took effect after the committed time on the armed robbery charges. This motion was denied and the defendant did not appeal. In March of 2006, the defendant, now acting pro se, filed a second motion to withdraw his pleas, later amended to add an additional claim; the Commonwealth filed no opposition. The same judge who had presided over the defendant's change of plea hearing and prior motion to withdraw denied the second motion in a marginal notation and this appeal followed.

2. Discussion. a. Standard of review. The defendant's claim that his motion counsel was ineffective was first raised in his reply brief on appeal and is waived; also waived is the related claim, raised in the first motion for a new trial, that his pleas were neither voluntary nor intelligent because he was not adequately informed of the consequences flowing from them. We nevertheless address these interrelated claims. See Commonwealth v. Perry, 65 Mass.App.Ct. 624, 634, 843 N.E.2d 640 (2006) (despite impropriety of presenting claims for the first time in the reply brief, claims were addressed "in order to forestall any future claim that appellate counsel was ineffective"). "All claims, waived or not, must be considered. The difference lies in the standard of review that we apply when we consider the merits of an unpreserved claim." Commonwealth v. Randolph, 438 Mass. 290, 293-294, 780 N.E.2d 58 (2002) (footnote omitted). That is particularly appropriate where, as here, the parties have fully briefed the issue that is at the crux of the appeal. Contrast Dutil, petitioner, 437 Mass. 9, 21-22, 768 N.E.2d 1055 (2002).

In these circumstances, we "review any error to determine whether it may have created a substantial risk of a miscarriage of justice." Commonwealth v. Walker, 443 Mass. 867, 871, 825 N.E.2d 491 (2005) (involving waived claims that unappealed ruling was clearly erroneous and counsel's failure to appreciate merits of appeal constituted ineffective assistance). See Commonwealth v. Acevedo, 446 Mass. 435, 442, 845 N.E.2d 274 (2006) (review of motion for new trial, whether based on error or as claim of ineffective assistance, is "solely to determine whether the error gives rise to a substantial risk of a miscarriage of justice"). See also Commonwealth v. Delong, 60 Mass.App.Ct. 122, 132, 799 N.E.2d 1267 (2003).

In considering the defendant's claim that his motion counsel was ineffective, we must first determine whether the plea judge erred in failing to inform the defendant of the consequences he faced if he did not successfully complete his term of straight probation. If the judge erred, we then consider whether counsel's failure to appeal "likely deprived the defendant of an otherwise available, substantial ground of defence," Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), thereby creating a substantial risk of a miscarriage of justice. Commonwealth v. Walker, 443 Mass. at 871, 825 N.E.2d 491 b. Intelligence and voluntariness of guilty plea. To inform our discussion we begin by setting out the well-established principle "that, as a matter of constitutional due process, a guilty plea should not be accepted, and if accepted must later be set aside, unless the record shows affirmatively that the defendant entered the plea freely and understandingly." Commonwealth v. Foster, 368 Mass. 100, 102, 330 N.E.2d 155 (1975). See Commonwealth v. Hiskin, 68 Mass.App.Ct. 633, 637, 639, 863 N.E.2d 978 (2007) (to be valid, guilty plea must be both intelligent and voluntary). These constitutionally based requirements were made applicable to the States by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); the procedures by which trial judges were to ascertain the voluntariness and intelligence of a plea were explicated in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (construing Fed.R.Crim.P. 11 only), and Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).⁵ A shortcoming with respect to either requirement will generally result in a finding that justice has not been done, which is the standard for a motion to withdraw a guilty plea pursuant to Mass.R.Crim.P. 30(b). Commonwealth v. Hiskin, supra at 637, 863 N.E.2d 978; Commonwealth v. Rodriguez, 52 Mass.App.Ct. at 580, 755 N.E.2d 753.

"A plea is intelligently made when the defendant has knowledge of the elements of the charges against him." Commonwealth v. Correa, 43 Mass.App.Ct. 714, 717, 686 N.E.2d 213 (1997). "Furthermore, an intelligent plea requires that the defendant have knowledge of the procedural protections that he would forego [sic] by pleading guilty." Ibid.⁶ Finally, to be voluntary and intelligent, the plea must be tendered with a real understanding of its consequences.

"A defendant's plea is intelligent when made with understanding of the nature of the charges (understanding of the law in relation to the facts) and the consequences of his plea (the legal consequences and constitutional rights he forgoes by pleading guilty rather than proceeding to trial)." Commonwealth v. Hiskin, supra at 638, 863 N.E.2d 978. See Commonwealth v. Morrow, 363 Mass. 601, 605, 296 N.E.2d 468 (1973) ("In establishing that a guilty plea is offered intelligently and voluntarily by the defendant, the judge must ensure that the plea has been made with an understanding of the nature of the charge and the consequences of the plea. Brady v. United States, 397 U.S. [at] 748. Huot v. Commonwealth, [363 Mass. 91, 100-101, 292 N.E.2d 700 (1973) ]"); Commonwealth v. Russin, 420 Mass. 309, 317-318, 649 N.E.2d 750 (1995) (judge's finding that "the defendant was advised of and understood the elements of the crimes charged and the punishment potentials upon conviction," established that "the constitutional requirements [were] satisfied and ... the pleas of guilty were freely, willingly and voluntarily made"). See also Commonwealth v. Rodriguez, 52 Mass. App.Ct. at 581 & n. 11, 755 N.E.2d 753.

i. Consequences of plea. The constitutionally based requirement that a defendant must understand the consequences of the plea has been codified, with additional requirements, within Mass. R.Crim.P. 12(c)(3), as amended, 399 Mass. 1215 (1987):

"(c) Guilty Plea Procedure. After being informed that the defendant intends to plead guilty or nolo contendere:

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"(3) Notice of Consequences of Plea. The judge shall inform the defendant on the record, in open court:

"(A) that by a plea of guilty or nolo contendere, or an admission to sufficient facts, the defendant waives the right to trial with or without a jury, the right to confrontation of...