Commonwealth v. Sena

96 Mass.App.Ct. 1102

134 N.E.3d 1150 (Table)

COMMONWEALTH

v.Dennis SENA.

17-P-1258

Appeals Court of Massachusetts.

Entered: September 20, 2019

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On July 31, 2013, the defendant was indicted for distribution of cocaine (subsequent offense), G. L. c. 94C, § 32A (d ) (count 1), possession of cocaine with intent to distribute (subsequent offense), G. L. c. 94C, § 32A (d ) (count 2), distribution of marijuana (subsequent offense), G. L. c. 94C, § 32C (b ) (count 3), possession of marijuana with intent to distribute (subsequent offense), G. L. c. 94C, § 32C (b ) (count 4), and money laundering, G. L. c. 267A, § 2 (count 5). He was indicted as a habitual criminal, G. L. c. 279, § 25 (a ), on counts 1, 2, and 5. On June 1, 2015, the judge allowed the Commonwealth's motion to dismiss the habitual criminal portions of the indictments, and the defendant entered agreed-to guilty pleas on all five counts. On counts 1 and 2, he was sentenced to concurrent sentences of from ten years to ten years and one day in State prison. On counts 3 and 4, he was sentenced to two years in the house of correction, concurrent with each other and with counts 1 and 2. On count 5, he was sentenced to four and one-half to five years in State prison, concurrent with counts 1 and 2. The sentences on all five counts (collectively, drug case) were concurrent with a fifteen-year sentence he had received two months prior in a case not before us (stabbing case), in which he was convicted, as a habitual criminal, of assault and battery by means of a dangerous weapon causing serious bodily injury and assault and battery by means of a dangerous weapon.² He subsequently filed a motion to withdraw guilty plea and enforce plea bargain, which was denied, and now appeals, pro se, from the denial of that motion. We review for significant error of law or other abuse of discretion, Commonwealth v. Williams, 71 Mass. App. Ct. 348, 353, 881 N.E.2d 1148 (2008), and accept the judge's factual findings unless clearly erroneous. Commonwealth v. Grant, 78 Mass. App. Ct. 450, 454, 940 N.E.2d 448 (2010). Ultimately, we see no abuse of discretion or other error of law in the judge's denial of the motion.

Discussion. 1. The conditionality of the probation surrender. The defendant argues that he was induced to admit to a probation violation in an unrelated matter in exchange for a sentencing recommendation of from five years to five years and one day in the drug case (five-year offer), but that the Commonwealth reneged on this agreement. The defendant's argument is that, from the beginning, the drug-case prosecutor had offered the defendant a five-year sentencing recommendation in exchange for his guilty plea in the drug case. He argues that, while this offer was initially unconditional, the drug-case prosecutor at the May 6, 2014 probation violation hearing changed the terms of the agreement, making it conditional on the defendant's admission to violating probation. The defendant performed by admitting to violating probation, but the drug-case prosecutor later withdrew the five-year offer, in violation of the agreement. "Whether an enforceable promise exists is primarily a question of contract law, ... but, in addition, [w]e would go beyond contract principles to order specific performance of a prosecutor's promise even where no contract may have existed, if, on principles of fundamental fairness encompassed within notions of due process of law, the promise should be enforced" (quotation and citations omitted). Commonwealth v. Francis, 477 Mass. 582, 585, 79 N.E.3d 1045 (2017).

The defendant's argument depends on two factual premises: that a five-year offer was on the table in the drug case, and that the drug-case prosecutor subsequently changed the terms of the offer, making it conditional on the defendant's admission to violating the terms of his probation.³ Both premises are contested.

With respect to the first factual premise, that there was a stand-alone five-year offer on the drug case, the Commonwealth says that "any offer on the drug case was contingent on a plea to the stabbing case." As the defendant notes, there was evidence suggesting the contrary.

At a lobby conference on October 31, 2013, at which plea resolutions in both the stabbing and drug cases were discussed, the drug-case prosecutor stated, "The Commonwealth's recommendation on [the drug] case, if it were to be standing in isolation would be five years to five years and one day in state prison." This of course is not phrased as an offer. But the record also contains an e-mail from the drug-case prosecutor to defense counsel dated June 5, 2014 (approximately one month after the probation violation hearing), stating, "[T]he 5-5+1 day offer is no longer on the table given that it's been out there for seven months without Mr. Sena accepting." This e-mail might be reasonably interpreted as withdrawing an offer, which presupposes that there was one to begin with. In addition, on March 20. 2015, at the beginning of the first trial in the stabbing case (which ultimately resulted in a mistrial because the jury were deadlocked), the drug-case prosecutor said, "[A]t some point in time ... there was an offer... It was a[t] one point five to five and a day, but that offer expired or was rejected." When the judge asked if on November 3, 2014, when the defendant, through his third trial counsel, first attempted to raise the alleged agreement, it was "still extant," the drug-case prosecutor said, "No, not in my opinion.... And I have documentary proof of that."

The second factual premise on which the defendant's argument rests, that the Commonwealth conditionalized the five-year offer on the defendant's admitting to violating probation, was addressed by the judge, who wrote:

"Notably absent from the defendant's submissions are any affidavits from the defendant's various attorneys showing that the Commonwealth made an irrevocable plea offer in exchange for the defendant's stipulation to a violation of probation. Further, the defendant's sworn and unequivocal responses during the colloquy relating to his stipulation to a violation of probation, denying that he had been promised anything or induced to stipulate, undercut the claim of a binding promise by the Commonwealth. Similarly, at the time of the defendant's change of plea the defendant (again under oath) acknowledged his understanding of the sentencing agreement reached between the Commonwealth and [his attorney], and neither the defendant nor his attorney referenced any other binding agreement. Under all of the circumstances, the defendant's assertion that he detrimentally relied on any earlier plea offer rings hollow."

It was within the judge's discretion to draw a negative inference from the defendant's failure to provide an affidavit from counsel, see Commonwealth v. Lys, 481 Mass. 1, 6, 110 N.E.3d 1201 (2018), even though the defendant did provide affidavits from his mother and his aunt (as well as one of his own), both of which stated that they were told contemporaneously by the defendant's then-counsel that the drug-case prosecutor stated that he would not keep the five-year offer open unless the defendant stipulated that he had violated the terms of his probation. Even assuming those affidavits were truthful, they report only hearsay.⁴

And, as the Commonwealth argues, various acts and omissions by the defendant and defense counsel following the probation hearing also are hard to square with the defendant's argument, Correspondence in the record shows that defense counsel was preparing a motion to suppress before the drug-case prosecutor sent the withdrawal e-mail, and the defendant did not contemporaneously complain when the prosecutor withdrew the five-year offer. On this record, and in the absence of an affidavit from counsel, the judge's finding is not clearly erroneous. Should the defendant refile his motion for a new trial with such an affidavit, and should it support his claims, a judge may of course "grant a new trial at any time if it appears that justice may not have been done." See Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001).

2. Ineffective assistance of counsel. The defendant's claim of ineffective assistance of counsel is more straightforward. The defendant had three trial attorneys. First trial counsel represented him until August 14, 2014. That same day second trial counsel was appointed, and served until November 3, 2014, when third trial counsel took over.⁵ The defendant argues that he was denied the effective assistance of counsel at a suppression hearing on November 3, 2014, because second trial counsel had not prepared for the motion -- having been admonished by the judge at a prior hearing for lack of preparation -- and because third trial counsel had not had enough time to familiarize himself with the case. The defendant withdrew the motion to suppress at the November 3 hearing on the advice of third trial counsel, and it was not ultimately argued.

A defendant asserting ineffective assistance of counsel must demonstrate that counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer" and that "it has 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). Regardless of how we assess the attorneys' behavior –- and we see nothing from the November 3 hearing that demonstrates it fell below the Saferian standard –- we are unpersuaded that the defendant was deprived of an otherwise available, substantial ground of defense as he has not demonstrated that his motion to suppress would have been allowed.

A police report, included in the appendix of the Commonwealth's opposition to the defendant's motion to withdraw his guilty plea, provides some sense of the facts underlying the motion to suppress. The defendant was seen twice entering and exiting a...