Commonwealth v. DiPietroCommonwealth v. DiPietro
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Following a thorough colloquy with the defendant on December 19, 1989, a judge accepted the defendant’s plea to indictments alleging trafficking in cocaine in an amount over one hundred grams (
1. Failure to file motion to suppress. The defendant contends, first, that his guilty plea was not voluntary because he believed at the time that a motion to suppress the evidence seized at his residence had been filed and denied 3 but that counsel had not in fact filed such a motion, and, had the defendant known the true facts, he would not have pleaded guilty. He maintains that the search warrant was invalid and that counsel’s failure to file a motion to suppress before the plea hearing deprived him of the effective assistance of counsel.
The defendant acknowledged during the plea colloquy that by pleading guilty he was waiving his right to challenge the search and also that he was satisfied with the representation and advice his attorney had provided. Nevertheless, the defendant’s contention that his plea was not voluntary was not waived. See
Commonwealth
v.
Cepulonis,
9 Mass. App. Ct. 302, 304 (1980);
United States
v.
Giardino,
797 F.2d 30, 31
Where the affidavit accompanying an application for a search warrant relies on information supplied by a confidential informant to establish probable cause, art. 14 of the Declaration or Rights of the Massachusetts Constitution requires that the two-part test established by
Aguilar
v.
Texas,
378 U.S. 108 (1964), and
Spinelli
v.
United States,
393 U.S. 410
Although the issue in this case is close, we think the veracity test was met. Neither the general averment in the affidavit of James J. Burleigh, a nineteen-year veteran F.B.I. agent, that the informant had been reliable in the past, nor the assertion that information he provided had led to arrests and to court orders for surveillance, is, by itself, sufficient. See
Commonwealth
v.
Rojas,
403 Mass. 483 (1988). There are additional statements, however, of a more substantial character. There are assertions that, within the previous ten
But for the possible staleness problem, the informant’s trustworthiness is adequately demonstrated by the information he provided to authorities concerning the whereabouts of fugitives and the location of contraband. Commonwealth v. Perez-Baez, 410 Mass. 43, 45 n.2, 46 (1991). Commonwealth v. Lopez, 31 Mass. App. Ct. 547; 549 (1991). In our view, the references in the affidavit to the lengthy time period over which the information was provided are not fatal to a determination of the informant’s veracity. Staleness is a problem when observations forming an informant’s basis of knowledge can not be pinned down to a date reasonably close to the date of the affidavit. Passage of time, however, does not usually erode one’s truth-telling propensities. In several cases, references to information provided “in the past” have been regarded as sufficient. See Commonwealth v. Perez-Baez, supra; Commonwealth v. Lopez, supra. Thus, we do not think that a staleness problem prevented a finding that the informant was reliable.
As to the basis of knowledge test, in paragraph three of the affidavit, it is recited: “Yesterday, on May 9, 1989, [the informant] informed me that [he] had observed numerous kilograms of cocaine at the [defendant’s residence].” An informant’s observation of contraband in the place to be searched satisfies the basis of knowledge test. See
Commonwealth
v.
Amral,
407 Mass. 511, 514-515 (1990). The affidavit does not directly disclose when the observations took place. However, it recites, in the two sentences following the one quoted above: “[the informant] has been told that the cocaine is awaiting sale to customers[, and the informant] has received additional information indicating that within the last 48 hours [the defendant] has made sales of kilograms of cocaine from the supply at [the defendant’s residence].” The three sentences, read together, indicate that the informant’s
As there was little chance that the defendant would have prevailed in the trial court or, ultimately, on appeal, on a motion to suppress, he cannot demonstrate that he was prejudiced by counsel’s failure to file such a motion. Hill v. Lockhart, 474 U.S. at 58-59. United States v. Debango, 780 F.2d 81, 85 (D.C. Cir. 1986). Thus, even if the defendant had proved after an evidentiary hearing that his attorney had told him, falsely, that he had filed such a motion, he could not show that counsel’s failure had any material effect on his decision to plead guilty.
2. Incorrect advice as to effects of amendment. There is no dispute that defense counsel incorrectly informed the defendant that, if he were to plead guilty or be convicted after January 15, 1990, the effective date of Chapter 415 of the Acts of 1989, he would not be eligible to receive good time credits. There is no merit, however, to the defendant’s claim that his pleas were involuntary because, when he decided to change his plea to guilty on December 19, 1989, he relied on this incorrect advice. A trial had been scheduled for that date, and there is no indication that the plea judge would have granted a continuance. The defendant must have known, therefore, that he would go to trial on December 19, 1989, and his only choice on that date was between pleading guilty and standing trial. The matter would have been concluded, in either event, before the effective date of the amendment. It is not plausible, therefore, to consider that his decision to plead guilty was affected by his misunderstanding of the new law. 5
At the plea colloquy, the defendant represented that plea counsel had acted in his best interests and fairly represented him. Moreover, in his affidavit, counsel recited that he met with the defendant in September and October (of 1989), and-“discussed in detail the evidence and charges in the case against him.” The motion judge was entitled to credit that affidavit. See Commonwealth v. Thomas, 399 Mass. 165, 167 (1987). The defendant indicated during the colloquy that he was pleading guilty because he was guilty. The plea judge made a “conspicuous effort to make sure that the defendant understood what was at stake and was acting voluntarily.” Commonwealth v. Jiminez, 27 Mass. App. Ct. 1165, 1166 (1989).
In sum, the defendant failed to show that his motion for a new trial should have been allowed or that there was a material dispute of fact as to any substantial issue requiring an evidentiary hearing. See
Order denying motion for new trial affirmed.
Notes
Sentencing, which took place on March 2, 1990, was delayed because the defendant had offered to cooperate with the authorities. The negotiations were apparently not fruitful. On the trafficking indictment, the judge sentenced the defendant to a term of from eighteen to twenty years at Massachusetts Correctional Institution, Cedar Junction, twelve years of which was to be served. The judge stated that it was his intention that the defendant be parole eligible after about seven years. The other indictment was placed on file with the defendant’s consent and is not before the court on appeal. Commonwealth v. Frey, 390 Mass. 245, 246 (1983).
Accompanying the new trial motion was a memorandum of law and the defendant’s affidavit. In his affidavit, the defendant acknowledged that present appellate counsel assisted in its preparation.
On February 26, 1990, after the guilty plea was accepted, defense counsel filed, along with a motion for a new trial, a motion to suppress based upon a one-day discrepancy in the date of the issuance of the search warrant. The Federal magistrate filed an affidavit explaining that he incorrectly dated one of the duplicate original search warrants. The motion to suppress was denied. The defendant did not appeal from the denial of this motion. This appeal concerns the denial of his second motion for a new trial.
In denying the defendant’s motion for a new trial, the judge reasoned that, because the search warrant was issued by a Federal magistrate, and because the investigation was solely a Federal one until the execution of the warrant, it should be tested according to Federal standards rather than the stricter State standards. See Commonwealth v. Upton, 394 Mass. 363 (1985). The defendant contends that it would have been error to test the warrant according to the Federal standards.
The issue, whether Federal or State standards were applicable, was raised by the plea judge on his own motion before the plea was accepted, and he invited memoranda on the issue from counsel. The Commonwealth provided a memorandum. According to his affidavit, defense counsel believed that there was no basis for challenging the search. Thus, he provided neither a motion to suppress nor a memorandum of law. The plea judge indicated that he was inclined to apply Federal standards. Even if that judge would have entertained and denied a motion to suppress, however, the defendant would have had the right, after standing trial, to appeal from the judge’s ruling on the motion to suppress.
The likely resolution of the Federal-State issue is not clear. It is disputed whether the entire investigation was Federal, and the Supreme Judicial Court has never decided whether the stricter State standard would apply to a Federal search warrant in a State court prosecution based upon a predominantly Federal investigation. Compare Commonwealth v. Jarabek, 384 Mass. 293 (1981). The resolution of the conflict would depend, we suppose, upon whether the court viewed the principal interest underlying the exclusionary rule as the deterrence of illegal police conduct, see Commonwealth v. Gagnon, 16 Mass. App. Ct. 110, 122 (1983), in which event application of a Federal standard would suffice, or as “judicial integrity” and the protection of privacy, see Selectmen of Framingham v. Municipal Ct. of Boston, 373 Mass. 783, 787 (1977), in which event application of the stricter rules would be called for. We need not resolve the issue in this case because, in our view, the search warrant satisfies the stricter State standard.
The defendant also made statements in his affidavit to the effect that his attorney had told him before his plea that he would lose his good time credits if he went to trial no matter when the trial took place. In his memorandum of decision, the motion judge did not discuss those statements in the defendant’s affidavit. It is unlikely that counsel would have given the defendant such advice, and the motion judge was entitled to regard the defendant’s statements as lacking in credibility. See Commonwealth v. Thomas, 399 Mass. 165, 167 (1987). In any event, we do not consider those statements because the defendant does not rely on them on appeal. To the contrary, he states in his brief that he “believed that if his sentence would have been imposed after the January 15, 1990, deadline, the statute . . . would . . . lengthen the term of his sentence.”
At the plea hearing, the assistant district attorney recited the factual basis for the pleas. The facts, admitted by the defendant, were straightforward. The defendant’s home was searched on May 10, 1989. The defendant was at home alone at the time. One hundred ninety-four and seven-tenths grams of seventy-four percent pure cocaine were found in a plastic bag in a kitchen cabinet, and ninety-four grams of marihuana were discovered in another plastic bag in a closet. Paraphernalia common to the drug trade were also discovered, along with papers and records bearing the defendant’s name.