Yаinira Boria was convicted of distributing cocaine, second offense, in violation of G. L. c. 94C, § 32A id), on June 27, 2006, and sentenced to a five-year mandatory term of imprisonment (from five years to five yеars and one day). During trial and over the defendant’s objection, the Commonwealth introduced a certificate of drug analysis (drug certificate) confirming that the substance, which had been purchased from the defendant by an undercover police officer and submitted to the State laboratory for analysis, was cocaine. The defendant appealed from her conviction and her sentence, and her appeal was entered in the Appeals Court on August 27, 2007. The sole legal issue raised in the appeal was the correctness of the judge’s conclusion that G. L. c. 94C, § 32A (d), required the imposition of a mandatory minimum sentence of five years.
On March 17, 2008, and prior to oral argument of her direct appeal in the Appeals Court, the United Statеs Supreme Court granted certiorari in Commonwealth v. Melendez-Diaz,
On June 25, 2009, the United States Supreme Court issued its decision in Melendez-Diaz I,
We today concluded that the rule announced by the United States Supreme Court in Melendez-Diaz I was a new rule not applicable to convictions, such as the defendant’s, that had become final prior to its issuance. See Commonwealth v. Melendez-Diaz, ante 238, 239-240 (2011) (Melendez-Diaz II). Consequently, there was no error in the admission of the drug certificate at the defendant’s trial based on the law in effect at the time. See Commonwealth v. Verde,
1. Evidence at trial. On June 22, 2005, State Trooper David Patterson, working undercover, aрproached the defendant outside a Chinese restaurant in Brockton and told her he was looking for a “twenty,” referring to twenty dollars’ worth of cocaine. The defendant said, “No problеm,” and approached another individual who removed something from his mouth, placed it in a menu, and handed the menu to the defendant. The defendant handed the menu to Trooper Patterson, who gave the defendant twenty dollars in exchange. Inside the menu was a clear plastic bag containing off-white powder. The defendant was subsequently arrested.
The substance given to Troоper Patterson was weighed and field tested,
“This certificate of analysis has been marked into evidence. The statute which I referred to еarlier provides in part that a certificate of analysis made by the Department of Public Health, the University of [Massachusetts Medical School] or the Drug Enforcement Administration shall be аnd it uses . . . ‘prima facie evidence of the composition of . . . the substance that is analyzed.’ The words prima facie mean that the certificate is evidence in this case, and it may bе considered by you along with the other evidence when you are deciding whether the substance was, in fact, cocaine.”
2. Discussion. The defendant claims that her appellate counsel was ineffective in representing her because she failed to pursue trial counsel’s objection to the admissibility of the drug certificate on the direct appeal, and then failed to mоve to stay that appeal until the United States Supreme Court rendered its decision in Melendez-Diaz I. If she were to succeed in her arguments, the defendant would be entitled to a new appeal, rather than a new trial. See Commonwealth v. Stote,
To prevail, the defendant bears the burden of demonstrating that “there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,” and that, as a result, the defendant was “likely deprived ... of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89,96 (1974). “A strategic
Appellate counsel’s failure to press the defendant’s objection to the admission of the drug certificates in the direct appeal did not constitute ineffective assistance. In light of Commonwealth v. Verde, supra at 284, such a claim wоuld have been futile at the time her appeal was brought in, and decided by, the Appeals Court. See Commonwealth v. Vasquez,
The defendant further claims, however, thаt if appellate counsel had sought a stay of her appeal once certiorari had been granted in Melendez-Diaz I, she might have successfully delayed the hearing in her direct appeаl until after the Court had decided the case, thus making the Supreme Court’s ruling available to her because her conviction would not have been final. We are not persuaded that the failurе to seek what would have been a lengthy stay of an appeal on the granting of certiorari in an unrelated criminal case, on the chance that an issue may be decided to thе defendant’s advantage, constitutes ineffective assistance of
The case against the defendant was very strong. Consequently, her principal claim on appeal was that the five-year mandatory term of imprisonment she had received was the result of a misinterpretation and misapplication of the mandatory sentencing provision in the statute. The defendant was serving her sentence while the appeal was pending. If she had prevailed, she would have been resentenced and, in light of the time she had served, released immediately. The alternative, now argued, would have significantly delayed a decision on the sentencing claim while she remained incarcerated, in the hope of benefiting on an issue uncertain in outcome, that would, at best, eventually win her a new trial, at which the evidence of her guilt once again would have been very powerful. The failure to pursue such a course was not manifestly unreasonable at the time.
3. Conclusion. For the foregoing reasons, the denial of the defendant’s motion for a new trial is affirmed.
So ordered.
Notes
There was no testimony as to the results of the field test.
Defense counsel’s objection was based, in part, on the admission of the drug certifícate in light of “the case law coming out on business reсords.” (Commonwealth v. Verde,