Commonwealth v. Samuel Ward. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-113
COMMONWEALTH
vs.
SAMUEL WARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2012, pursuant to a plea agreement, the defendant,
Samuel Ward, admitted to sufficient facts to warrant an
adjudication as a youthful offender on three counts related to a
violent drug-dealing incident. Nine years later, after he was
charged with new offenses and arraigned as an armed career
criminal under G. L. c. 269, § 10G (a), he moved to withdraw his
guilty plea. He claimed, inter alia, that his plea was not
knowing and intelligent because he was not informed by the judge
or his plea counsel that he could potentially face such future
sentencing enhancements. The motion judge, who also presided
over his original plea and sentencing hearing, denied the motion
without an evidentiary hearing. We affirm.
Background. In December 2011, while at a marijuana
dealer's apartment to buy drugs, the then sixteen year old
defendant produced a handgun from his pocket and used the handle
of the weapon to club the dealer in the head between fifteen and
twenty-five times. The victim and another eyewitness cooperated
with the police investigation and testified before the grand
jury. The defendant was indicted as a youthful offender on one
count each of armed home invasion, G. L. c. 265, § 18C, assault
and battery with a dangerous weapon (ABDW), G. L. c. 265, § 15A,
and armed robbery, G. L. c. 265, § 17.
With the advice of his appointed counsel, the defendant
accepted a plea agreement and was adjudicated a youthful
offender. The defendant's presentence report disclosed that he
was a special education student with social and emotional
deficits, substance abuse issues, attention deficit
hyperactivity disorder, and behavioral health problems. The
judge conducted a colloquy with the defendant during his plea
hearing in March 2012 and found that the defendant knowingly,
intelligently, and voluntarily waived his rights. The judge
failed, however, to inform the defendant on the record of the
mandatory minimum and maximum possible sentences that he could
face, as was required by Mass. R. Crim. P. 12 (c) (3), as
appearing in 442 Mass. 1511 (2004).1
1 The rule has since been amended several times, but the
requirement remains in place. See Mass. R. Crim. P. 12 (c) (3)
(A) (ii), as amended, 489 Mass. 1501 (2022). References to rule
12 herein are to the 2004 version unless otherwise noted.
2
During the sentencing portion of the hearing, the victim
gave an impact statement saying that he thought the defendant
"should be going away." The judge then sentenced the defendant,
on the armed home invasion and armed robbery adjudications, to
the recommended five years commitment to the Department of Youth
Services (DYS). The judge determined, however, with the
defendant's assent, that probation on the ABDW adjudication
would begin immediately, rather than upon release from his DYS
commitment (as was recommended), and would terminate on the
recommended date in 2021, thus lasting for nine years.
In 2016, while still on probation, the defendant was
arrested and arraigned as an armed career criminal (ACC) under
G. L. c. 269, § 10G (a), with the 2012 adjudications serving as
the predicate offenses.2 He was found to be in violation of the
terms of his probation on the ABDW adjudication and was
sentenced to two years in the house of correction.
In March 2021, the defendant filed a "motion to withdraw
his guilty plea and motion for a new trial," arguing that plea
counsel was ineffective in 2012 in failing to inform the
defendant that the victim and the other eyewitness, because of
2 The ACC statute, G. L. c. 269, § 10G (a), enhances the sentence
for anyone, "having been previously convicted of a violent crime
or of a serious drug offense," who unlawfully carries or
possesses a firearm or ammunition under G. L. c. 269, § 10 (a),
(c), or (h).
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their involvement in the drug deal, might have invoked their
privilege against self-incrimination had the defendant's case
gone to trial. The defendant also claimed that his decision to
accept the plea agreement was not made knowingly or
intelligently, because of the combined failure of the judge and
plea counsel to mention the minimum and maximum sentences and
"any different or additional punishment for subsequent
offense[s]," including future ACC charges. Mass. R. Crim. P. 12
(c) (3). The judge denied the motion without an evidentiary
hearing, and the defendant filed this appeal.
Discussion. 1. Standard of review. "A motion to withdraw
a guilty plea is treated as a motion for a new trial under Mass.
R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001)."
Commonwealth v. Furr, 454 Mass. 101, 106 (2009). A judge may
grant a motion for a new trial "only 'if it appears that justice
may not have been done'" (citation omitted). Id. We review the
judge's decision for "a significant error of law or other abuse
of discretion," giving particular deference when, as here, the
motion judge was also the plea judge. Commonwealth v. Scott,
467 Mass. 336, 344 (2014), quoting Commonwealth v. Sherman, 451
Mass. 332, 334 (2008). We reverse an order denying such a
motion only when the decision is "manifestly unjust" or the
proceeding "was infected with prejudicial constitutional error"
(citation omitted). Furr, supra. "This strict standard . . .
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promotes judicial efficiency and finality by discouraging a
defendant from entering a guilty plea 'to test the weight of
potential punishment' . . . only to seek to withdraw the plea
later when adverse consequences appear, especially consequences
not even contemplated at the time of the plea." Commonwealth v.
Lopez, 426 Mass. 657, 662–663 (1998).
"[T]he judge may decide a rule 30 (b) motion based solely
on affidavits; may discredit untrustworthy affidavits . . . and
need only proceed to evidentiary hearing 'where a substantial
issue is raised [by the motion or affidavits] and is supported
by a substantial evidentiary showing'" (citation omitted).
Lopez, 426 Mass. at 663. We review the motion judge's decision
not to hold an evidentiary hearing for abuse of discretion. See
Commonwealth v. Goodreau, 442 Mass 341, 348 (2004). We accept
the judge's findings of fact unless clearly erroneous and his
credibility determinations as final. See Scott, 467 Mass. at
344.
2. Ineffective assistance of counsel. The defendant argues
that plea counsel was ineffective in failing to advise him (1)
that the victim and eyewitness would likely assert their
privilege against self-incrimination and thus be unavailable to
testify at trial and (2) that his adjudication could serve as a
predicate for a future ACC sentencing enhancement. In an
affidavit accompanying his motion for a new trial, the defendant
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asserted that "[a]t no point prior to . . . taking [his] plea
did [plea counsel] have a conversation with [him] about the
Fifth Amendment privilege," and, had counsel told him that the
victim and eyewitness could have claimed the privilege, he would
have "elected to set the matter for trial" instead of taking the
plea agreement. He also stated that the fact "that the charges
to which [he] was pleading could serve as the basis for a later
charge as an armed career criminal . . . would have been
important information for [him] to have in deciding how [he]
wished to resolve [his] case," but that plea counsel "never
mentioned anything specific about guns and certainly never
mentioned the term 'armed career criminal.'"
For his part, plea counsel indicated that his files on the
defendant's case had already been destroyed as a matter of
routine, but that he had a partial record of communicating with
the defendant and the defendant's parents, before the defendant
accepted the plea agreement, about "future consequences, direct
and collateral, for violation of [probation]." Counsel also had
a specific memory of discussing with the defendant "the
potential for consequences of his plea affecting other aspects
of his life, [including] potential unknown consequences due to
the felony conviction," such as "enhanced penalties . . . [for]
future gun [violent crimes] and drug offenses." Finally,
counsel represented that it was his "general practice to explain
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to all clients what evidence may, and may not, get introduced
should the case proceed to trial," but that he had no specific
memory of discussing the victim's or witness's self-
incriminating testimony with the defendant. The judge generally
credited the plea counsel's representations (as set forth in the
affidavit of the defendant's appellate counsel) and discredited
the defendant's affidavit.
To prevail on a claim of ineffective assistance of counsel,
a defendant must establish that counsel's performance fell
"measurably below that which might be expected from an ordinary
fallible lawyer" and "likely deprived the defendant of an
otherwise available, substantial ground of defense."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "Where a new
trial is sought based on a claim of ineffective assistance of
counsel, the burden of proving ineffectiveness rests with the
defendant." Commonwealth v. Montez, 450 Mass. 736, 755 (2008).
a. Witnesses' privilege against self-incrimination. The
defendant argues on appeal that the judge should have held an
evidentiary hearing to determine whether plea counsel actually
advised the defendant about the possibility that the witnesses
could decline to testify, as counsel's statements did not
directly contradict the defendant's assertion that the topic was
never discussed.
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Regardless whether such a conversation actually occurred --
and the judge below seemed to find that it did -- we agree with
the judge that, because it was so speculative that the witnesses
would have invoked their privilege, the defendant failed to meet
his burden to demonstrate that he was "likely deprived . . . of
an otherwise available, substantial ground of defense."
Saferian, 366 Mass. at 96. The two witnesses, despite the
incriminating circumstances, had already cooperated with the
police investigation and testified to the grand jury, where they
could have asserted their privilege if they thought it
necessary. See United States v. Washington, 431 U.S. 181, 186
(1977). Moreover, the victim, apparently spurred by his desire
to see the defendant punished, voluntarily appeared and spoke in
open court at sentencing, moments after his role in the drug
deal was read into the record. Although the victim was not
asked about the incriminating circumstances, his statement
evinces the unlikelihood of his claiming the privilege had he
been called to testify at trial. Contrary to the defendant's
argument on appeal, the likelihood that the witnesses could have
claimed the privilege is not the same as the likelihood that
they would have done so.3 The Fifth Amendment to the United
3 At oral argument the defendant suggested a new basis for
finding prejudice based on counsel's advice. The defendant
argued that, had he been advised of the mere possibility that
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States Constitution "does not preclude a witness from testifying
voluntarily in matters which may incriminate him, . . . for
those competent and free willed to do so may give evidence
against the whole world, themselves included" (quotations and
citation omitted). Washington, supra at 186-187.
b. Future ACC charges. The defendant also argues that the
judge erred in rejecting his claim that he received ineffective
assistance where plea counsel did not advise him about the
possibility of future ACC charges. We are unpersuaded.
First, the motion judge found that the defendant was, in
fact, advised about enhanced sentences for future drug and gun
crimes. Based as it was on plea counsel's specific memory, this
finding was not clearly erroneous.
Second, the judge correctly concluded that no such warning
was required in order for the defendant to receive
the witnesses could have invoked their privilege, he would have
rejected the plea agreement, moved forward to trial, attempted
to determine if the witnesses would indeed invoke their
privilege, and, if they would not, offered to accept the plea
agreement anew. This speculative scenario was not set forth in
the defendant's affidavit, or in the memorandum in support of
his "motion to withdraw his guilty plea and motion for a new
trial," or even in his appellate brief. The Commonwealth has
had no opportunity to respond to it with evidentiary material or
written argument, and the motion judge made no findings about
it. The prejudice argument the defendant made to the motion
judge was simply that, had he been properly advised, he would
have proceeded to trial and "the case would likely have been
dismissed on that [trial] date." Thus we decline to consider
further the defendant's new argument on this record.
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constitutionally adequate assistance of counsel. The defendant
relies on professional standards published by bar organizations
to support the proposition that his attorney should have advised
him about future ACC charges. Although there may well be wisdom
in such recommendations, "[p]revailing norms of practice as
reflected in American Bar Association standards and the like
. . . are [only] guides to determining what is reasonable."
Strickland v. Washington, 466 U.S. 668, 688 (1984). The Supreme
Judicial Court has rejected the argument that "a failure to
advise a defendant of all possible collateral consequences
results in constitutionally ineffective assistance."
Commonwealth v. Henry, 488 Mass. 484, 497 (2021). This includes
a failure to advise of "possible future sentencing enhancements
should [the defendant] be convicted of another crime," id.,which are contingent on the defendant's own future conduct.
3. Plea colloquy. Finally, the defendant contends that
his plea colloquy was constitutionally inadequate because the
judge failed to inform him, on the record in open court, of (1)
the mandatory minimum and maximum possible sentences for the
crimes to which he admitted, and (2) the possibility that he
could face future ACC sentence enhancements. He argues that
these omissions are especially prejudicial in light of his age
and cognitive limitations, which prevented him from
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understanding the long-term consequences of his plea. The
argument is unavailing.
It is true that rule 12 (c) (3) (B), as then in effect,
required the judge to inform the defendant of the mandatory
minimum and maximum possible sentences for the crimes to which
he admitted, including in particular for the ABDW charge for
which he received probation, and the record is clear that no
such warning was issued to the defendant in court. The same
requirement is in effect today. See note 1, supra. See
generally Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 579
(2001) (where defendant sentenced to straight probation, warning
about minimum and maximum sentences he could receive if he
violated probation was appropriate). However, "[w]e will not
assume that the defendant's plea was involuntary and unknowing
and say as a matter of law that justice was not done simply
because the record reflects noncompliance with rule 12." Id. at
580. Instead, we ask "whether compliance with rule 12 would
have made a difference in the decision of the defendant to plead
guilty." Id.
We accept the judge's determination below that the
defendant did not present "plausible evidence that, if fully
informed, he would have preferred to go to trial" and risk the
twenty-year mandatory minimum sentence for the armed home
invasion charge if found guilty, rather than the possible ten-
11
year sentence he could have faced on the ABDW charge if he
violated probation. See Commonwealth v. Murphy, 73 Mass. App.
Ct. 57, 67-69 (2008); Rodriguez, 52 Mass. App. Ct. at 581-583.
Indeed, the judge's conclusion is supported by the defendant's
own affidavit, in which (as mentioned supra) the defendant
claimed only that the maximum sentence "would have been
important information to have," not that it would have changed
his mind about accepting the agreement. The judge's
determination is also bolstered by the very favorable
disposition offered in the agreement, the multi-year delay
between the disposition and the filing of the motion, the fact
that the motion was filed only after the defendant faced ACC
charges as a result of the adjudications, and the absence of any
assertion of factual innocence or of a viable defense. See
Murphy, supra. Thus the failure to inform the defendant of the
minimum and maximum sentences for ABDW did not invalidate the
plea.
Much the same reasoning applies to the failure to warn the
defendant about future ACC charges. Even if the language of
rule 12 did require such a warning, as the defendant contends,4
4 Rule 12 (c) (3) (B), as then in effect, required the judge to
inform the defendant of "any different or additional punishment
based upon subsequent offense . . . provisions of the General
Laws, if applicable." Accord Mass. R. Crim. P. 12 (c) (3) (A)
(ii) (a), as amended, 489 Mass. 1501 (2022). The defendant
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we would still agree that the omission made no difference to the
defendant's decision to admit to the charges. This is
especially true where the judge found that plea counsel told the
defendant about potential future sentencing enhancements, and so
the defendant would have had actual knowledge of the possibility
even without the judge's warning.
Because we agree that neither of the omissions in the
colloquy made a difference to the defendant's decision to admit
to sufficient facts, we need not address his claim that his age
and cognitive limitations hindered his ability to enter a
knowing and intelligent plea with those consequences in mind.
We note, however, that the judge was aware of those limitations
before the colloquy; that the defendant was well-acquainted with
the criminal justice system (having appeared before the same
judge on twenty-four different occasions); that the defendant's
parents were present at his plea; and that he was represented by
able counsel at all stages of the case. See Commonwealth v.
Russell, 37 Mass. App. Ct. 152, 157 (1994), cert. denied, 513
asserts that this language refers to the potential for future
sentencing enhancements, on future offenses, if the defendant
pleads guilty, not just those enhancements which will be applied
to the sentence on the pending charges. Because we agree that
such information would not have changed the defendant's
decision, we need not consider whether his interpretation is
correct.
13
U.S. 1094 (1995) (considering similar circumstances in affirming
order denying motion for new trial).
Order denying motion for new
trial affirmed.
By the Court (Sacks, Shin &
D'Angelo, JJ.5),
Clerk
Entered: July 7, 2023.
5 The panelists are listed in order of seniority.
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