Commonwealth v. WhitfordCommonwealth v. Whitford
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- Before:
- Dreben
A Brink’s employee was robbed at gunpoint while making a delivery to the Jamaica Plain branch of The
In his appeal the defendant argues that the judge erred in denying his motion to withdraw the pleas on the following grounds: the record does not affirmatively disclose the vol-untariness of the pleas because the Commonwealth failed to disclose the full plea bargain prior to acceptance of the plea; because the defendant was deprived of the effective assistance of counsel; and because the procedure was tainted by the judge’s looking at the defendant’s presentence report prior to the acceptance of the pleas, and by his failure to accord the defendant the right of allocution. We affirm.
1.
Standard of review.
In contrast to the stricter standards applicable to postconviction motions to withdraw guilty pleas, the Supreme Judicial Court has pointed out that
The record must, however, indicate that the plea was entered intelligently and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242 (1969). Commonwealth v. Foster, 368 Mass. 100, 102 (1975).
2. Voluntariness of plea in view of failure to disclose. The defendant argues that, because the judge accepted the defendant’s plea without full knowledge of the promises made by the Commonwealth, he was unable to determine the voluntariness of the plea. The facts do not support this contention.
Before the defendant’s pleas were accepted in June, 1981, both counsel informed the judge that the Commonwealth recommended concurrent Walpole sentences on the three indictments of not less than fifteen nor more than twenty
An examination of the transcript of the June hearing shows that the judge was assiduous in ensuring that the defendant fully understood the charges and the consequences of his plea. He informed the defendant, “I will listen to the recommendation that the Commonwealth makes. I certainly would not exceed it ... . And I will listen to what . . . your counsel has to say. But I will impose the sentence I deem appropriate, but I want you to know it will be within that range of not less than fifteen nor more than twenty .... So you know exactly what it is that you are pleading to.” In addition, the judge questioned the defendant with great care as to the significance of a fifteen- to twenty-year sentence. The defendant’s answers leave no doubt that he recognized the full implications of the recommended sentences, both as to the time of eligibility for parole and the duration of such parole. 3
In view of the clarity of the record as to the defendant’s understanding of the import of the sentences and the judge’s willingness to follow the originally undisclosed recommendation and impose identical concurrent sentences on the Revere charges, we do not see (nor has the defendant suggested) how the failure to disclose the Commonwealth’s recommendation on the Revere charges in any way harmed the defendant or affected the voluntariness of his plea.
3. Ineffective assistance of counsel. The stark allegations of counsel’s failures in the defendant’s affidavit in support of his motion to withdraw his guilty pleas, repeated in the defendant’s brief on appeal, not only do not rise to the level of appellate argument, Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), but also fail to allege, as required, how the defendant was prejudiced at the plea bargaining hearing by such shortcomings of his attorney. Commonwealth v. Nichols, 8 Mass. App. Ct. 934 (1979).
The claim of conflict of interest on the bare assertion that counsel had previously — no indication as to when — served as a State trooper is without merit. Cf.
Commonwealth
v.
Smith,
362 Mass. 782, 783 (1973). If this contention were
Counsel’s failure to disclose to the court the plea bargain as to the Revere charges did not deprive “the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Commonwealth v. Perry, 389 Mass. 464, 471-472 (1983).
Also without merit is the allegation that defendant’s former counsel should have made some argument on behalf of the defendant before sentencing. Here, sentencing did not occur until defendant’s former counsel had been replaced by defendant’s present counsel. In addition, there has been no showing of prejudice or indication of mitigating factors that could have been presented to the judge.
4.
Presentence report.
In the portion of the judge’s colloquy of June 1 with the defendant which concerned his knowing waiver of his right to trial by jury, the judge commented, “Now from looking over your past record, you certainly understand what a trial by jury is, right?” On the basis of this statement, the defendant claims that the judge improperly looked at the defendant’s prior criminal record, thus establishing “error of the clearest kind.”
Gregg v. United States,
394 U.S. 489, 492 (1969). See
United States
v.
Hopwood,
422 F.2d 348, 349 (10th Cir. 1970). See also
United States
v.
Cruz,
707 F.2d 111, 115 (1st Cir. 1983). The cases cited are based on Fed.R.Grim.P. 32(c)(1) which, unlike our rules, provides specifically that a presentence report “shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty . . . except that a judge may, with the written consent of the defendant, inspect a presentence report at any time.” Our rule,
The record is not unequivocal as to what the judge looked at. When counsel, after the refusal of the judge to allow withdrawal of the plea and prior to sentencing, asked the judge to recuse himself “because of the fact that the Court knew about his prior record,” the judge said, “I don’t know anything about his prior record.” Thus, as in Gregg, supra at 492-493, we do not have a record showing with sufficient clarity what was examined by the judge. See also Commonwealth v. Martin, 355 Mass. 296 (1969), which gives a general description of a probation report which may be in two parts: one the criminal record (“blue sheets”) and the other a part containing information gathered “by the probation department from the defendant himself, former employers of the defendant and others.” Id. at 297. In addition, there may be a more formal presentence report. Different considerations may apply to each of these materials. Moreover, we note that in the course of the colloquy on June 1, the defendant himself adverted to his prior convictions and indicated he had pleaded guilty on a few occasions. These statements of the defendant suggest that, if perchance there was error, such error was harmless.
We conclude that there has been no showing of an abuse of discretion in the trial judge’s order denying the defendant’s motion to withdraw his pleas.
Order affirmed.
Notes
We note, however, that some of the considerations discussed in DeMarco, supra at 485-486, which provide the rationale for stricter standards for postconviction motions may also apply here. For example, the government may be, and has alleged in its brief that it was, prejudiced because the case against the codefendants has concluded without the defendant’s having been tried. See United States v. Barker, 514 F.2d 208, 222-223 (D.C. Cir.), cert. denied, 421 U.S. 1013 (1975). This factor may be important, particularly in view of the disclosure by the record that the defendant’s motion to sever, filed on May 22, 1981, was denied. Of course, even under rule 12 prejudice to the government is to be taken into account. See cases cited in DeMarco, at 486 n.12.
On October 26, 1981, prior to sentencing, the prosecutor and the defendant agreed to ten- to twelve-year sentences on the Revere charges, but the judge informed both counsel that he would not impose a sentence of less than ten to twenty years. The defendant then decided not to plead to the Revere charges.
The unequivocal answers of the defendant appearing in the transcript undoubtedly led to his provident decision not to pursue in this court the claim made to the trial judge that the defendant misunderstood the sentence he was to receive. See Commonwealth v. Morrow, 363 Mass. 601, 607 (1973); Commonwealth v. Perry, 389 Mass. 464, 470 (1983); Commonwealth v. Stanton, 2 Mass. App. Ct. 614, 622 (1974); Commonwealth v. Cepulonis, 9 Mass. App. Ct. 302, 309 (1980), habeas corpus denied sub nom. Cepulonis v. Ponte, 699 F.2d 573, 574 (1st Cir. 1983); Commonwealth v. Johnson, 11 Mass. App. Ct. 835, 840 (1981). These cases indicate that inaccurate explanations of sentences by counsel do not render a plea vulnerable, especially when there is a clear exposition by the judge.