Commonwealth v. ClericoCommonwealth v. Clerico
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The defendant pleaded guilty in the Boston Municipal Court to two counts of motor vehicle homicide by negligent operation and received a sentence greater than he had anticipated he would receive. The defendant filed motions for a new trial and for the recusal of the judge, which were denied. The defendant appeals, claiming that (1) the pleas were not made intelligently and voluntarily due to ineffective assistance of counsel, and (2) the trial judge was bi
1. The facts. On February 1, 1989, Annette Marson and her son William Marson were struck and killed by an automobile driven by the defendant. After an initial bench trial in Chelsea District Court, the defendant was convicted on two counts of motor vehicle homicide by negligent operation and sentenced to two consecutive terms of two and one-half years, with nine months to serve on each count.
The defendant appealed for a trial de novo before a jury of six in the Boston Municipal Court. The day after trial commenced, the defendant indicated that he wanted to change his plea. Both the prosecutor and defense counsel informed the judge that there would be a joint sentence recommendation of one year to be served concurrently on each count of motor vehicle homicide. The victims’ family, represented by independent counsel, agreed to the recommended sentence.
In three separate colloquies the judge said she would exceed the recommended sentence. To defense counsel, the judge said she would entertain a guilty plea only if the defendant would acknowledge that the judge would in all likelihood exceed the Commonwealth’s recommendation and that the defendant would not be able to withdraw his plea. 1 When asked by defense counsel what would be the likelihood of exceeding the recommended sentence, the judge responded, “Great. I know nothing about [the defendant.] I haven’t heard from the families of the two dead people, and that, of course, would color any action I take, but one year does not sound like much to this judge.”
After discussion with counsel, the defendant moved to change his pleas to guilty. Before the formal plea colloquy
The defendant filed a timely appeal. In the interim, a motion to revoke and revise the sentence was denied. Represented by new counsel, the defendant filed both a motion for new trial under
2.
Validity of guilty plea.
The appropriate vehicle for attacking the validity of a guilty plea is a motion for a new trial.
Commonwealth
v.
DeMarco,
387 Mass. 481, 482 (1982). A trial judge upon written motion may grant a new trial if it appears that justice may not have been done.
A guilty plea may be deemed involuntary if the defendant was incompetently advised.
Tollett
v.
Henderson,
411 U.S. 258, 266-267 (1973). In deciding a claim of ineffective assistance of counsel, we must ascertain whether 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, 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 defendant claims that his plea of guilty was invalid because it resulted from improper and erroneous advice given to him by his trial attorney, upon which he relied to his
We reach a point not mentioned in the defendant’s brief but which calls for clarification: namely, whether the judge failed to follow the procedure outlined in
Even if there were here a technical violation of rule 12(c)(2), as this court stated in
Commonwealth
v.
Johnson,
11 Mass. App. Ct. 835, 841 (1981), where the judge deviates from the technical mandate of rule 12(c), “[t]he real issue ... is whether a waiver was knowingly and voluntarily made. . . . Thus, while compliance with the procedures set out in rule 12(c) is mandatory, adherence to or departure from them is but one factor to be considered” in determining the validity of a guilty plea. See also Reporter’s Notes to
The record shows that the defendant entered his plea freely and knowingly. Both before and during the plea collo
The defendant may not collaterally attack his guilty plea on the ground that his attorney misadvised him on the sentence he would receive, “particularly where the judge has advised the defendant that [s]he is not bound by the prosecutor’s recommendation, has advised the defendant of the maximum possible sentence, and has made an express finding that the plea has been offered knowingly and voluntarily.” Commonwealth v. Stanton, 2 Mass. App. Ct. 614, 622 (1974). See also Commonwealth v. Perry, 389 Mass. 464, 472 (1983). Accordingly, the denial of the motion for a new trial did not constitute an abuse of discretion. 8
3.
Motion to recuse.
The defendant claims that the trial judge was unfair to and biased against him and should have recused herself from presiding over the postconviction proceedings. He suggests that the judge’s improper conduct included the following: (1) misleading defense counsel to believe that the judge would accept a negotiated agreement
The decision to withdraw from a case at any stage is within the judge’s sound discretion. Commonwealth v. Coyne, 372 Mass. 599, 602 (1977). Harris v. Trustees of State Colleges, 405 Mass. 515, 527 (1989). To require disqualification of the judge, the alleged bias or partiality ordinarily “must spring from an extrajudicial source, and not from matters learned from participation in the case.” Fogarty v. Commonwealth, 406 Mass. at 111.
Regarding the possibility of the judge accepting a negotiated agreement, the judge stated to defense counsel, “I think your issue is with [the prosecutor], and if you can work something out, then I’ll certainly hear it, but that’s who you have to convince, not me.” There was nothing misleading about the statement, nor was there a promise that the judge would accept an agreed upon recommendation. The judge merely indicated that any agreed upon sentence recommendation — regardless of whether the judge would accept it — would first have to be reached between the prosecutor and defense counsel. In the circumstances, the judge was not bound by the joint sentence recommendation of the prosecutor and the defendant. See
Similarly, there is no support for the defendant’s contention that the judge promised to reduce the defendant’s sen
Finally, the judge’s comment that the affidavit submitted by trial counsel (which the defendant alleges was integral to his claim of ineffective assistance), “grossly misrepresents the record in this case” did not require recusal based on alleged partiality. When “[a]n opinion develop [s] from information acquired in the course of presiding over a case,” a judge is not disqualified from rendering a decision in the matter. Adoption of Seth, 29 Mass. App. Ct. 343, 351 (1990). The judge could make use of her knowledge of what occurred at trial in assessing the credibility of the affidavit. Commonwealth v. Bowie, 25 Mass. App. Ct. 70, 84 (1987).
The defendant has failed to show any grounds for requiring the recusal of the judge.
Judgment affirmed.
Order denying motion for recu-sal affirmed.
Order denying motion for new trial affirmed.
Notes
The judge specifically stated to defense counsel that she would entertain a plea only if the defendant “will not appeal any sentence that I will impose.” From subsequent statements to defense counsel and to the defendant during the plea colloquy, it is evident that the judge was referring to the fact that once the defendant changed his plea and the jury were discharged, he could not then withdraw his plea. The defendant was advised that his only right to appeal would be based on a claim of ineffective assistance of counsel or involuntariness of the plea.
The judge asked the defendant the following questions:
Q: “Do you understand that you are now in the midst of a jury trial?”
A: “Yes.”
Q: “And do you understand that your attorney, Mr. Machera, has informed me that you want to give up your right to a jury trial and plead guilty to two counts of motor vehicle homicide?”
A: “Yes, I do.”
Q: “Do you know that by pleading guilty, you are giving up the right to have a jury of six people decide whether you are guilty or not guilty?”
A: “Yes, I do.”
Q: “Do you understand that initially, your attorney and [the prosecutor] asked me to accept your plea of guilty and impose a one-year committed sentence, concurrent, on each charge, do you understand that?”
A: “Yes, I do.”
Q: “Do you understand that I informed [the prosecutor] and your lawyer, Mr. Machera, that I would not accept that sentence?”
A: “Yes, I do.”
Q: “That there was a great likelihood that” I would exceed it?”
A: “Yes.”
Q: “That the only condition under which I would entertain a plea of guilty from you is if you understood and agreed that upon your plea, I could impose any sentence permitted by law?”
A: “Yes, I do.”
Q: “Do you understand that that means I could impose a two-and-a-half-year sentence on each charge, to be served on and after?”
A: “Yes, I do.”
Q: “So that the sentence could be two and a half years on one count and two and a half years, on and after, on the other count?”
A: “Yes, I do.”
Q: “And is there any question in your mind, Mr. Clerico, about whether or not you want to plead guilty under those circumstances?”
A: “No, there is not.”
Q: “Do you understand that I will not allow you to withdraw your plea of guilty and go back before the jury if you plead guilty?”
A: “Yes, I do.”
Q: “And do you understand that there are other circumstances in other cases where defendants do have the right to plead, hear what the judge would do and then go before a jury by withdrawing their plea?”
A: “Yes, I do.”
Q: “Do you understand that in this case, because the jury has already been impaneled, because we have been dealing with the case for several days, because we are in the midst of a jury trial, I will not allow you to withdraw your plea of guilty?”
A: “Yes, I do.”
Q: “That you will be basically stuck with whatever sentence I impose?”
A: “Yes, I do.”
Q: “Do you understand that?”
A: “Yes, I do, Your Honor.”
Q: “Is there any question in your mind about that, Mr. Clerico?”
A: “No, there is not.”
At oral argument, appellate counsel conceded that the plea colloquy was “letter perfect.”
The defendant’s new appellate counsel requested that we deem predecessor counsel’s brief on the appeal from the judgment withdrawn and proceed only upon his brief and appendix. Accordingly, predecessor counsel’s brief and appendix were struck. We proceed only upon those issues raised by the defendant’s current counsel.
The defendant also argues on appeal that the judge, in her findings on the defendant’s new trial motion, did not discuss defense counsel’s failure to warn the defendant, prior to appealing his bench trial conviction, as to the potential inadmissibility of this “crucial” evidence. There is nothing in the record below to indicate that the defendant was not so informed or that the information would have affected his decision to proceed with the trial de novo.
The record does not establish that the sentence recommendations were “contingent upon the tender of the plea,” which would invoke application of
The former rule 12(c)(2) gave the judge “broad discretion to allow a defendant to withdraw his plea before the plea has been accepted and sentence imposed.” Commonwealth v. DeMarco, 387 Mass. 481, 484 (1982). Under the amended rule, the defendant is entitled to withdraw his plea as a matter of right, upon learning that the joint sentence recommendation has been rejected by the judge. Here, in effect, the judge rejected the recommendation and then gave the defendant the opportunity to withdraw the tendered plea before accepting it. The defendant was thus accorded the right given him by the rule in a manner that would enable the jury trial to proceed if the defendant had elected to withdraw the tender of the plea.
Because we find no ineffectiveness with regard to the defendant’s plea, his contention that trial counsel was ineffective because he did not obtain a pretrial ruling on the admissibility of certain accident reconstruction evidence fails. Once a voluntary plea was accepted, no ruling was required on the issue. Nevertheless, the record supports the judge’s finding that the decision not to press a ruling on the issue at that time was a strategic choice by trial counsel which did not amount to ineffective assistance.
The defendant’s supplemental motion to recuse, which recounts the events of the lobby conference and hearing on the motion, reveals that after the victims’ family was contacted for the second time, the decedent’s two sisters and husband opposed a sentence reduction.