42 Mass. App. Ct. 354 | Mass. App. Ct. | 1996
Over two years elapsed before the defendant, Joseph Facella, represented by new counsel, moved for a new trial after pleading guilty to seven indictments in the
In asserting that he was entitled to an evidentiary hearing on his first new trial motion, the defendant mounts a three-pronged attack: that his guilty pleas were not knowing and voluntary; that a contingent fee agreement which he signed created either a genuine or potential conflict of interest that deprived him of the effective assistance of counsel during the change of plea proceedings; and that counsel was ineffective because he was not prepared for trial. Contrary to the defendant’s contention, the judge properly exercised his discretion in concluding that the defendant’s motion did not raise a “substantial issue,” and that an evidentiary hearing was not required. See, e.g., Mass.R.Crim.P. 30(c)(3), 378 Mass. 901 (1979); Commonwealth v. DeVincent, 421 Mass. 64, 67,69 (1995). The judge is to apply the standard set out in rule 30 “rigorously,” and may grant a motion to withdraw a guilty plea only if “it appears that justice may not have been done.” Commonwealth v. DeMarco, 387 Mass. 481, 486-487 (1982). Mass.R.Crim.P. 30(b), 378 Mass. 900 (1978). Notwithstanding an ethical lapse of defense counsel, we affirm the denial of the defendant’s motion.
On April 19, 1990, Beatrice requested a continuance and indicated to the judge that he was not prepared to try the case. He told the judge that he had carried out his obligations under the contingent fee agreement but that the defendant was reluctant to plead guilty. He explained that he did not have the “experience and forte to try this kind of case.” The judge reminded Beatrice of his professional obligations. After a recess, the judge asked Beatrice who was going to try the case. Beatrice responded that Attorney Robert Stanziani would try the case if a continuance were granted. Beatrice told the judge that he had discussed a possible plea with the prosecutor and thought that would be the best resolution. The judge scheduled trial for April 23, 1990.
2. The proceedings. On that day, the defendant informed the judge that he was “willing to plead guilty to certain charges.” Pursuant to Mass.R.Crim.P. 12(c), 378 Mass. 868 (1979), as amended by 399 Mass. 1215 (1987), the judge informed the defendant of the consequences of pleading guilty. During the course of the plea colloquy, the defendant testified that he was a college graduate with a degree in business
The judge then reviewed the various indictments to determine whether the defendant understood the exact nature of the charges.
After the judge explained the constitutional rights the defendant would be surrendering, the prosecutor reviewed the maximum sentence that could be imposed on each of the charges.
On November 4, 1993, at the nonevidentiary hearing on the first new trial motion, the defendant was represented by Attorney Steven Topazio. The defendant’s affidavit, which was presented to the judge, recites that Beatrice told him he would use his “connections” to get him a favorable outcome, informed him that the prosecutor “wanted [the defendant] to get about five years,” but that the prosecutor was “softening up,” and indicated that if he were given $15,000 Beatrice would try to keep the defendant completely out of jail. The affidavit also recites (1) that while in a holding area in the Boston Municipal Court on April 19, Beatrice and Stanziani approached him and suggested that he plead to a nine to fifteen year sentence but that he refused, telling the attorneys that he was innocent; and (2) that on April 23, Beatrice told him he should plead to all counts, except one, and that he would receive a nine to fifteen year sentence. The alternative, he was allegedly told, was that the trial would take place that day and that he could receive a fife sentence.
We recount some of the plea judge’s observations at the hearing. The plea had been entered into “after a lengthy colloquy and supported by a document which the defendant not only read, but corrected and signed.” The judge represented that he remembered the case with “great clarity,” that there was on the record strong evidence of a “series of violent and brutal events,” and that had there been a conviction, the result might very well have been a sentence “substantially more severe than the one that the government was prepared to recommend.” The judge suggested, with respect to the contingent fee agreement, that the Facella family was going into the arrangement “with its eyes open,” and that Beatrice
3. Analysis.
a. Ineffective assistance of counsel. The defendant argues here that the contingent fee agreement executed by the Facel-las with Beatrice, in essence, deprived Beatrice of any incentive to achieve the best outcome for the defendant. There can be no doubt that Beatrice’s entry into the agreement was unethical. Supreme Judicial Court Rule 3:08, DF 5(b), 382 Mass. 804 (1981), provides that it is “unprofessional conduct for defense counsel to enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case.” The preface to the rule also provides, however, that the rules “are not published as criteria for the judicial evaluation, to determine the validity of a conviction, or the behavior of prosecutors or of the competence of defense counsel” (emphasis supplied). 382 Mass. 798. That such an agreement was executed, does not, standing alone, suggest ineffective assistance of counsel. Danger lurks in situations where “a contingent fee arrangement in a criminal case may lead to a conflict of interest, such as influencing counsel to advise against a favorable plea bargain.” O’Donnell v. Bane, 385 Mass. 114, 118-119 (1982). Here the judge implicitly found that the agreement on its face intimated no conflict of interest, genuine or potential. Whether a conflict of interest exists is a mixed question of fact and law. Commonwealth v. Wooldridge, 19 Mass. App. Ct. 162, 167 (1985), and cases cited. Beatrice had no incentive to pressure the defendant into an involuntary plea, and there was nothing in the terms of the agreement stating that the defendant would have to plead guilty before Beatrice would be entitled to an additional fee. The agreement provided that Beatrice would be paid an additional $15,000 if he negotiated a sentence of no more than ten years. He did so. When the defendant signed the agree
There is also no substantial issue raised by the claim that Beatrice’s acknowledgment at the April 19 proceeding that he was not prepared to try the case demonstrated the ineffectiveness of his assistance. Beatrice informed the judge that Stan-ziani was available as trial counsel. He also gave to the judge a copy of the fee agreement, the express terms of which establish that Beatrice would not act as trial counsel in the event that plea negotiations failed. Under these circumstances, the judge’s determination was correct.
Finally, the “contemporaneous record” of the defendant’s responses at the plea colloquy shows that there is no facial basis for the claim that defense counsel coerced the defendant into pleading guilty. See Commonwealth v. Quinones, 414 Mass. 423, 431-432 (1993).
b. Refusal to act on second new trial motion. In his second motion for a new trial, the defendant claimed that his guilty pleas were involuntary because he was under the influence of the antidepressant drug Prozac, and that the court failed to make any inquiry into the possible effects of the drug on his ability to reason. The judge declined to act on the motion, and the question raised in the motion, therefore, is not ripe for review. See Commonwealth v. Layne, 386 Mass. 291, 296-297 (1982). Nevertheless, we address the question briefly, lest it be the subject of further proceedings in the Superior Court or here.
The judge was not obliged to credit the self-serving aflida-
So ordered.
With respect to an indictment for armed assault with intent to murder, the judge sentenced the defendant to a term of from nine to fifteen years at M.C.I., Cedar Junction, and an additional from three to five year term concurrent with the governing sentence on an indictment for deriving support from earnings of a prostitute. On an indictment for kidnapping and on multiple indictments for assault and battery with a dangerous weapon, the judge imposed from three to five year terms concurrent with each other and consecutive to the governing sentence; then he suspended the sentences for five years and imposed probationary conditions. The eighth indictment, charging the defendant with aggravated rape was placed on file with consent of the defendant and is not before this court. See Commonwealth v. Frey, 390 Mass. 245, 246 (1983).
At one point, the defendant asked whether it was necessary that the judge read the indictments, as the defendant had “decided to plead guilty to everything except the aggravated rape.” The defendant indicated that he did not want to be “changing [his] mind”; that his attorneys had advised him to plead guilty and that he was “willing” to do that. The judge told the defendant that the formalities had been prescribed by the Supreme Judicial Court and that he would observe them so that “there is no question as to what it is you are pleading guilty to.”
The sentences imposed were in accordance with the recommendation.
Parenthetically, the judge then explained to the defendant that an individual, under confinement, sometimes “gets the idea that. . . the reason he pleaded guilty was because his lawyer made him do it.” In those circumstances, the judge observed, his “tendency is to believe that when a [defendant is in front of me, under oath, looking at me that’s when he is telling the truth,” rather than when, after a period of time, the defendant writes an affidavit stating that he did not tell the truth at the original plea colloquy.
At sentencing on May 7, 1990, the judge commented that “there was no question in [his] mind that this case, if the jury had returned a verdict of guilty, would entail substantially higher periods of incarceration than what the government is prepared to recommend.”
We note the defendant is not claiming that the plea colloquy itself was deficient in any respect. See 356-358, supra.
Beatrice filed a memorandum in “support of the recommended sentence” which recites that the defendant has offered to plead guilty for many reasons, “amongst which is the fact that he cannot provide alternative explanation of the injuries to [the victim].”