Commonwealth v. Ivor I.

90 Mass.App.Ct. 1121

65 N.E.3d 670 (Table)

COMMONWEALTH

v.IVOR I., a juvenile.

No. 14–P–1493.

Appeals Court of Massachusetts.

December 21, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Ivor I., a juvenile at the time of the offenses at issue here, appeals from an order denying his motion for a new trial. Specifically, the juvenile asserts that his pleas of delinquency were defective because plea counsel provided ineffective assistance by failing to investigate his competency to offer the pleas, his possible lack of criminal responsibility, and the underlying facts of the case involving a witness/victim who had recanted. We affirm.

Background. On the day after the juvenile's release from an involuntary mental health commitment, he was arraigned on multiple counts of indecent assault and battery on a person under age fourteen, two counts of breaking and entering in the nighttime with the intent to commit a felony, two counts of assault by means of a dangerous weapon, and one count of assault with intent to rape.² The charges stemmed from an incident that had occurred on March 12, 1999, when the juvenile was fourteen years old. It appears that the incident came to light during a police investigation of an unrelated incident involving the juvenile, when a student informed police that the juvenile had "molested some girls"—specifically, three girls between the ages of twelve and thirteen. Police subsequently interviewed each of the girls. They each related a similar account of the evening's events. Aside from one telephone call placed to police on the night of the incident reporting the presence of an "unwanted party," it was the first time any of them had spoken to law enforcement about the events of that evening.³

On August 30, 1999, the juvenile entered pleas of delinquent to all but the assault with intent to rape charge, which was dismissed on the request of the Commonwealth. The judge committed the juvenile, who was already serving a Department of Youth Services (DYS) commitment, to DYS custody until his eighteenth birthday. As a result of his pleas to these offenses, the juvenile was required to register as a sex offender. Over a decade later, charged with failure to register, the juvenile filed the motion for new trial and to withdraw his pleas.

The juvenile supported his motion with six affidavits. In addition to his own affidavit, the juvenile submitted affidavits from his mother, from a forensic psychologist (Dr. Frank DiCataldo), from the recanting witness/victim, from appellate counsel, and from counsel representing him in connection with the charge of failing to register as a sex offender. In addition, appellate counsel averred that he talked to plea counsel, who had "no present day memory" of the case and could not locate the case file. The motion judge, who was also the plea judge, ordered an evidentiary hearing on the juvenile's motion, at which four witnesses testified—the juvenile, his mother, Dr. DiCataldo, and the recanting witness/victim.⁴ The judge denied the juvenile's motion, and this appeal followed.

Discussion. Standard of review. "A motion for a new trial pursuant to Mass. R.Crim. P. 30(b) is the proper vehicle by which to seek to vacate a [delinquency] plea." Commonwealth v. Scott, 467 Mass. 336, 344 (2014). Judges hearing motions to withdraw pleas must rigorously apply the standard set out in Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), and should only allow the motion if it appears that justice may not have been done. See Commonwealth v. Berrios, 447 Mass. 701, 708 (2006) ; Scott, supra. "The decision on a motion for a new trial, as well as the decision whether to decide the motion on the basis of affidavits or to hear oral testimony, is left largely to the sound discretion of the judge. Commonwealth v. Cook, 380 Mass. 314, 320 (1980). Commonwealth v. Heffernan, 350 Mass. 48, 53–54, cert. denied, 384 U.S. 960 (1966)." Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). Our review is confined to "whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Furthermore, we defer to the judge's credibility determinations, see Commonwealth v. Adkinson, 80 Mass.App.Ct. 570, 584 (2011), and "extend[ ] special deference to the action of a motion judge who was also the [plea] judge." Commonwealth v. Grace, supra.

The juvenile complains of plea counsel's performance, and we analyze his claims under the familiar Saferian standard, that is, whether counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer—and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The juvenile must establish "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). We turn now to the juvenile's three challenges to counsel's performance.

a. Competency. Twelve years after the juvenile tendered his pleas, he seeks to withdraw them on the basis of his counsel's failure to investigate his competency. He asserts that in denying the motion, the judge applied the wrong standard and, therefore, erroneously denied his motion. We disagree.

The Supreme Judicial Court recently articulated the proper standard for postverdict motions challenging competency. See Commonwealth v. Chatman, 473 Mass. 840, 847 (2016). If the issue of competency is raised after conviction, a defendant bears the burden of establishing that, had the issue been raised earlier, the Commonwealth could not have established that a defendant (1) had a "sufficient present ability to consult with his [or her counsel] with a reasonable degree of rational understanding," and (2)that he or she had "a rational as well as factual understanding of the proceedings." Ibid., quoting from Commonwealth v. Bynum Harris, 468 Mass. 429, 443 (2014). A defendant need not establish his incompetency by a preponderance of the evidence but, at a minimum, a defendant must show "that the weight of the evidence of competenc[y] and the weight of the evidence of incompetenc[y] are in equipoise." Ibid.

Issues of competence on appeal are necessarily backward-looking, because the focus is on a defendant's competence at an earlier time. Thus, "when the postverdict motion is heard by the same judge as presided over the [plea], the ‘judge's determination of competency is entitled to substantial deference because the judge had the opportunity to ... evaluate the defendant personally.’ " Ibid ., quoting from Commonwealth v. Brown, 449 Mass. 747, 759 (2007). See Commonwealth v. Prater, 420 Mass. 569, 574 (1995).

The juvenile supports his claim that he was incompetent and did not understand the proceedings with his testimony and the testimony of his mother (both of which the judge rejected), and the testimony of Dr. DiCataldo, who, after reviewing twelve year old medical records, opined that the juvenile's mental health diagnosis should have prompted an investigation into the juvenile's competency and criminal responsibility. Dr. DiCataldo points to nothing aside from the juvenile's mental health diagnosis in reaching this conclusion. A mental condition alone, however, does not render a defendant incompetent to tender a plea. Commonwealth v. Robbins, 431 Mass. 442, 448 (2000).

Here, the evidence of the juvenile's competency was established by the judge's consideration of her practice of inquiring extensively into a juvenile's understanding of the trial process during a plea colloquy and, more significantly, of rejecting a juvenile's plea when the colloquy raises doubts about the juvenile's competency. Compare Commonwealth v. Cartagena, 466 Mass. 1021, 1022 (2013) ("[T]he judge's recollection in this case that his customary practice during the...