Commonwealth v. Mahar

Cordy, J.

In this case we must decide whether a defendant who rejects a plea bargain offer made by the Commonwealth prior to trial, and is subsequently convicted and sentenced to a longer term, may challenge his sentence on the ground that his attorney rendered ineffective assistance in connection with his decision to reject the offer. While we conclude that such a claim may be brought, we also conclude that it was properly rejected in the circumstances presented here.¹

Background. After entering a home and threatening its occupants with a machete, Richard Mahar was indicted on several charges, including armed home invasion, armed assault with intent to rob, assault by means of a dangerous weapon, assault and battery, and malicious destruction of property. Prior to trial, he rejected the Commonwealth’s offer to dismiss the indictment charging armed home invasion (which carries a twenty-year minimum sentence) and to recommend a sentence of six years’ imprisonment in exchange for his plea of guilty to the other indictments.²

At trial, it was established that on March 3, 1997, the defendant, armed with a machete, arrived outside a home where his girl Mend was visiting. He obtained entrance to the home (concealing the weapon he carried) and wielded the machete against those present inside. Relying on Commonwealth v. Dunn, 43 Mass. App. Ct. 58 (1997), Mahar’s primary defense against the armed home invasion charge was that he was invited into the home, that his entry therefore was consensual and lawful, and that the Commonwealth thus could not prove a necessary element of the offense.³ In accordance with this theory, defense counsel requested that the judge instruct the jury that they could not convict if they found that Mahar “was permitted to enter the house by a lawful occupant.” The judge declined to give such an instruction, instead telling the jury that they could find unlawful entry sufficient to convict if they found that Mahar entered the home “for the purposes of committing a crime therein.” The jury subsequently convicted Mahar of all of the charges with the exception of two of the four indictments charging assault by means of a dangerous weapon. He was sentenced to from twenty to twenty-five years’ imprisonment.

On direct appeal, this court affirmed Mahar’s conviction of armed home invasion, concluding that even if he was invited into the home, the occupants were unaware that he was armed with a dangerous weapon and intended to commit an assault, and that any “purported consent [to the entry therefor] cannot be considered legally significant.” Commonwealth v. Mahar, 430 Mass. 643, 652 (2000). Mahar then filed a motion for a new trial based on the ineffectiveness of his counsel’s advice in connection with his decision to reject the Commonwealth’s plea bargain offer. In support of the motion, Mahar submitted an affidavit in which he averred (1) that his trial counsel “advised [him] that in order to convict [on the charge of armed home invasion] the Commonwealth had to prove that the persons inside the house did not consent to [his] ent[ry],” and (2) that “[i]f [he] had known that consent to entry is not a defense to armed home invasion . . . [he] would have accepted the [plea] offer.” His trial counsel also submitted an affidavit, stating (1) that on the basis of language in Commonwealth v. Dunn, supra, she “formed the belief . . . that the Commonwealth would be required to prove that [Mahar’s] entry . . . was without . . . consent,” (2) that she “so advised” him, and (3) that “[i]f [she] had advised him in advance of trial of the jury instruction that was actually delivered [that he could be convicted if the jury found that he entered the home with the purpose of committing a crime therein], he would probably have accepted the plea agreement that was offered to him shortly before trial.”

Finding that trial counsel’s reliance on Commonwealth v. Dunn, supra, was not unreasonable and that she was not ineffective for failing to anticipate how the Supreme Judicial Court might interpret the armed home invasion statute, the trial judge denied the motion.⁴ Mahar appealed, and we transferred his appeal to this court on our own motion.

Discussion. It is beyond dispute that a defendant’s decision whether to plead guilty or proceed to a trial is a critical stage in a criminal proceeding for which he is constitutionally entitled to the effective assistance of counsel. See, e.g., Moran v. Burbine, 475 U.S. 412, 431 (1986) (“Sixth Amendment right to counsel . . . attach[es] . . . after the initiation of formal charges”); Hill v. Lockhart, 474 U.S. 52, 56 (1985), quoting McMann v. Richardson, 397 U.S. 759, 771 (1970) (“defendant [who] . . . enters his plea upon the advice of counsel [entitled to] advice . . . ‘within the range of competence demanded of attorneys in criminal cases’ ”); Commonwealth v. Soffen, 377 Mass. 433, 436 (1979) (“right [to counsel] attaches to that stage of the criminal process during which the defendant is deciding how to plead”). That right plainly includes counsel’s effective assistance in connection with the defendant’s decision whether to accept or reject a plea bargain offer made by the Commonwealth. See, e.g., Hill v. Lockhart, supra at 58; Osborne v. Commonwealth, 378 Mass. 104, 108-113 (1979). See also Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003); Magana v. Hofbauer, 263 F.3d 542, 547 (6th Cir. 2001); United States v. Carter, 130 F.3d 1432, 1442 (10th Cir. 1997), cert. denied, 523 U.S. 1144 (1998); United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992); Toro v. Fairman, 940 F.2d 1065, 1067 (7th Cir. 1991), cert. denied, 505 U.S. 1223 (1992); State v. Donald, 198 Ariz. 406, 413 (Ct. App. 2000), cert. denied, 534 U.S. 825

(2001) ; In re Alvernaz, 2 Cal. 4th 924, 934-935 (1992); Cottle v. State, 733 So. 2d 963, 965-966 (Fla. 1999); Williams v. State, 326 Md. 367, 378 (1992); State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div. 2002); In re Plante, 171 Vt. 310, 313 (2000). Although we have not had occasion to consider the issue, we agree with nearly every other appellate court that has, that if the offer is rejected because of the ineffective assistance of counsel, the fact that the defendant subsequently receives a fair trial does not ameliorate the constitutional harm that occurred in the plea consideration process. See In re Alvernaz, supra, and cases cited in the margin.⁵

In order to make out a claim of ineffective assistance of counsel, a defendant must of course show serious incompetency of counsel (behavior falling measurably below that which might be expected from an ordinary fallible lawyer) and prejudice that, in this context, means a “reasonable probability” that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Cf. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (“serious incompetency, inefficiency, or inattention of counsel . . . [that] has likely deprived the defendant of an otherwise available, substantial ground of defence”).

Not surprisingly, the majority of cases in which courts have sustained claims of ineffectiveness of counsel in the context of plea bargaining have been based on the failure of counsel either to communicate the government’s plea offer to the defendant, see, e.g., Pham v. United States, supra at 181-183; Lyles v. State, 178 Ind. App. 398, 402 (1978); State v. Simmons, 65 N.C. App. 294, 301 (1983), or to explain its implications accurately (including the difference between the sentence recommendation contained in the offer and the maximum sentence that could be imposed on conviction after trial), see, e.g., United States v. Rashad, 331 F.3d 908, 911-912 (D.C. Cir. 2003); Magana v. Hofbauer, supra at 545; Cullen v. United States, 194 F.3d 401, 402-403 (2d Cir. 1999); Boria v. Keane, 99 F.3d 492, 494 (2d Cir. 1996), cert. denied, 521 U.S. 1118 (1997); United States v. Day, supra at 44. (Neither of these circumstances is present in this case.) Such cases present fact issues that can normally be resolved without second guessing the judgmental aspects of the advice of counsel. Nevertheless, courts that have considered the issue have concluded, albeit cautiously, that other forms of incompetent advice at the plea bargain stage may also form the basis for postconviction relief if the element of prejudice can be adequately proved. See United States v. Rashad, supra at 911-912 (attorney underestimated sentencing exposure and strength of government’s case; remanded for finding of prejudice); Tse v. United States, 290 F.3d 462, 463, 466 (1st Cir. 2002) (attorney allegedly erroneously advised that government could not prosecute certain charges; remanded for limited evidentiary hearing); Paters v. United States, 159 F.3d 1043, 1044, 1048-1049 (7th Cir. 1998) (attorney erroneously advised that defendant could only be found guilty for drugs in his physical possession and that he had “nothing to lose” by proceeding to trial; remanded for hearing on prejudice); Toro v. Fairman, supra at 1068 (attorney advised against guilty plea despite “very strong” evidence against defendant; court denied relief because inadequate showing of prejudice); In re Alvarnez, supra at 930-931, 945 (incorrect advice as to sentencing exposure after trial combined with prediction of acquittal may have been ineffective but prejudice not proved); State v. Lentowski, 212 Wis. 2d 849, 854, 857 (1997) (incorrect advice as to defenses in sexual assault case was ineffective; new trial ordered).

In considering claims based on the incompetence of the legal advice bearing on the likelihood of acquittal, a court must be acutely aware of the temptation of a defendant to second guess his decision and counsel’s advice in light of subsequent adverse events. By their nature, assessments of the likelihood of acquittal involve layers of judgment and a highly uncertain element of prognostication, and it is extremely difficult to assess with hindsight the soundness of the earlier judgments. Consequently, we caution, as have other appellate courts, “that a defense attorney’s simple misjudgment as to the strength of the prosecution’s case, the chances of acquittal, or the sentence a defendant is likely to receive upon conviction, among other matters involving the exercise of counsel’s judgment, will not, without more, give rise to a claim of ineffective assistance of counsel.” In re Alvernaz, supra at 937. On the facts of the present case, we conclude, as the motion judge did, that Mahar failed to establish that his counsel was constitutionally ineffective, and thus do not reach the issues of prejudice and remedy.

On the issue of incompetency, Mahar argues, essentially, that his attorney’s conclusion that the Commonwealth must prove (but could not) that he was not invited into the house was based on a wholly unreasonable understanding of the law.⁶ We evaluate whether the attorney’s apparent advice was “within the range of competence demanded of attorneys in criminal cases,” McMann v. Richardson, 397 U.S. 759, 111 (1970), at the time that it was given. We do not view such advice retrospectively through the lens of subsequent events that may have proved it wrong. See Commonwealth v. Duhamel, 391 Mass. 841, 844 (1984) (“At the time of trial, no clear precedent existed to guide counsel . . .” [emphasis added]); Commonwealth v. Adams, 374 Mass. 722, 729-730 (1978) (“test is not to be made with the advantage of hindsight”).

In Commonwealth v. Dunn, 43 Mass. App. Ct. 58 (1997), decided barely five months before the defendant’s trial commenced, the Appeals Court interpreted the meaning of the term “enters” as used in G. L. c. 265, § 18C,⁷ the statute setting forth the crime of armed home invasion, in the following manner:

“The term ‘enters’ within the statute is given no special definition. Nonetheless, the word is to be construed as an unlawful entry, consistent with its use in a criminal context. See Black’s Law Dictionary 533 (6th ed. 1990) (‘In criminal law, entry is the unlawful making [of] one’s way into a dwelling or other house, for the purpose of committing a crime therein’). See also Commonwealth v. Ricardo, 26 Mass. App. Ct. 345, 355 (1988) (for purposes of armed assault within a dwelling, G. L. c. 265, § 18A, entry must be ‘unprivileged’ or unlawful). Indeed, the act’s very caption — ‘An Act Establishing the Crime of Home Invasion’ — bespeaks legislative intent that a consensual or privileged entry is not an ‘invasion.’

“Further, the word ‘enters’ appears in related statutory contexts, including G. L. c. 265, § 18A, and G. L. c. 266, §§ 14-19 (pertaining generally to burglary and to breaking and entering). As here, the word contemplates the common law meaning of an unlawful, or nonconsensual, entry.”

Commonwealth v. Dunn, supra at 60. On the basis of this interpretation, according to her affidavit, Mahar’s attorney “formed the belief that the trial judge would instruct the jury that the Commonwealth would be required to prove that the entry into the dwelling . . . was without the consent of a lawful occupant,” and “so advised” her client. That belief, finding support in a recent case interpreting the very statute at issue, and in authorities cited in that case, see Commonwealth v. Ricardo, 26 Mass. App. Ct. 345, 355-357 (1988) (defendant could not be found guilty of armed assault within dwelling, see G. L. c. 265, § 18A, if he had right to enter); see also Commonwealth v. Robbins, 422 Mass. 305, 313-316 (1996) (same under G. L. c. 266, § 14), was reasonable.⁸ Accord Commonwealth v. Duhamel, supra at 844-845, quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (attorney’s performance did not “fall measurably below that which might be expected from an ordinary fallible lawyer” where actions supported by existing case law). See Commonwealth v. Mula, 19 Mass. App. Ct. 993, 995 (1985) (no indication in case law that motion would have been allowed). That her prediction as to the charge the judge was likely to give the jury proved to be inaccurate does not change the analysis. We do not require attorneys to foretell the future: the attorney’s advice was reasonable, and it did not become incompetent because a subsequent judicial opinion made clear an aspect of the offense that previously was less certain. Cf. Commonwealth v. Smith, 427 Mass. 245, 256-257 (1998). Mahar’s counsel was not ineffective.

The order of the Superior Court judge denying Mahar’s motion for a new trial is affirmed.⁹

So ordered.

1 We acknowledge the amicus brief submitted by the Attorney General.

2 Armed assault with intent to rob has a maximum sentence of twenty years, G. L. c. 265, § 18; assault by means of a dangerous weapon provides for a maximum sentence of five years, G. L. c. 265, § 15B. Assault and battery and malicious destruction of property carry maximum sentences of two and one-half years, G. L. c. 265, § 13A, and ten years, G. L. c. 266, § 127, respectively.

3 The circumstances in which Mahar gained entrance into the house were hotly disputed at trial. See Commonwealth v. Mahar, 430 Mass. 643, 647, 650-651 (2000).

4 The judge reached Mahar’s ineffective assistance of counsel claim only “in an exercise of caution,” already having held it to be waived because he failed to raise it on direct appeal. The judge was correct that postconviction motions for a new trial based on grounds available but not raised on direct appeal are waived. See Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501 (2001). See also Commonwealth v. Pike, 53 Mass. App. Ct. 757, 760 n.4 (2002) . However, because the substantial risk of a miscarriage of justice standard applicable to waived claims and the standard applicable to ineffective assistance of counsel claims are, insofar as both determine whether error affected the outcome, “two sides of the same coin,” Commonwealth v. Peloquin, 437 Mass. 204, 210 n.4 (2002), the issue of waiver here is without substantive effect. See Commonwealth v. Curtis, 417 Mass. 619, 624-625 n.4 (1994).

5 For courts concluding that a fair trial cannot cure certain constitutional infirmities in the plea negotiation process, see, e.g., United States v. Rashad, 331 F.3d 908 (D.C. Cir. 2003); United States v. Ridgeway, 321 F.3d 512 (5th Cir. 2003); Pham v. United States, 317 F.3d 178 (2d Cir. 2003); Tse v. United States, 290 F.3d 462 (1st Cir. 2002); Magana v. Hofbauer, 263 F.3d 542 (6th Cir. 2001); Cullen v. United States, 194 F.3d 401 (2d Cir. 1999); Paters v. United States, 159 F.3d 1043 (7th Cir. 1998); United States v. Gordon, 156 F.3d 376 (2d Cir. 1998); United States v. Carter, 130 F.3d 1432 (10th Cir. 1997), cert. denied, 523 U.S. 1144 (1998); Boria v. Keane, 99 F.3d 492 (2d Cir. 1996), cert. denied, 521 U.S. 1118 (1997); Engelen v. United States, 68 F.3d 238 (8th Cir. 1995); Coulter v. Herring, 60 F.3d 1499 (11th Cir. 1995), cert. denied sub nom. Coulter v. Jones, 516 U.S. 1122 (1996); United States v. Blaylock, 20 F.3d 1458 (9th Cir. 1994); United States v. Day, 969 F.2d 39 (3d Cir. 1992); Toro v. Fairman, 940 F.2d 1065 (7th Cir. 1991), cert. denied, 505 U.S. 1223 (1992); Diaz v. United States, 930 F.2d 832 (11th Cir. 1991); Turner v. Tennessee, 858 F.2d 1201 (6th Cir. 1988), vacated on other grounds, 492 U.S. 902 (1989); Johnson v. Duckworth, 793 F.2d 898 (7th Cir.), cert. denied, 479 U.S. 937 (1986); United States ex rel. Caruso v. Zelinsky, 689 F.2d 435 (3d Cir. 1982); State v. Donald, 198 Ariz. 406 (Ct. App. 2000), cert. denied, 534 U.S. 825 (2001); Cottle v. State, 733 So. 2d 963 (Fla. 1999); Lloyd v. State, 258 Ga. 645 (1988); People v. Curry, 178 Ill. 2d 509 (1997); Lyles v. State, 178 Ind. App. 398 (1978); Williams v. State, 326 Md. 367 (1992); State v. Taccetta, 351 N.J. Super. 196 (App. Div. 2002); Larson v. State, 104 Nev. 691 (1988); State v. Simmons, 65 N.C. App. 294 (1983); Hanzelka v. State, 682 S.W.2d 385 (Tex. Ct. App. 1984); In re Plante, 171 Vt. 310 (2000); Becton v. Hun, 205 W. Va. 139 (1999); State v. James, 48 Wash. App. 353 (1987); State v. Lentowski, 212 Wis. 2d 849 (1997). Only the courts of Louisiana, see State v. Monroe, 757 So. 2d 895 (La. Ct. App. 2000), and Utah, see State v. Knight, 734 P.2d 913, 919 n.7 (Utah 1987), hold to the contrary.

6 Without citation to legal authority, Mahar also argues that “to be sure [of her conclusion],” his attorney “could easily have supplemented her reading of the statute [defining the offense] and [of Commonwealth v. Dunn, 43 Mass. App. Ct. 58 (1977), the case on point] with inquiries of the trial judge regarding his anticipated legal rulings.” We find implausible the suggestion that attorneys should confirm their view of the law with trial judges who would be generally disinclined to commit to any “anticipated legal rulings” before having heard the evidence.

7 General Laws c. 265, § 18C, provides, in relevant part:

“Whoever knowingly enters the dwelling place of another knowing or having reason to know that one or more persons are present within or knowingly enters the dwelling place of another and remains in such dwelling place knowing or having reason to know that one or more persons are present within while armed with a dangerous weapon, uses force or threatens the imminent use of force upon any person within such dwelling place whether or not injury occurs, or intentionally causes any injury to any person within such dwelling place shall be punished by imprisonment in the state prison for life or for any term of not less than twenty years.”

8 Indeed, as we expressed in Commonwealth v. Mahar, 430 Mass. 643, 650-653 (2000), elaborating on the language in the Appeals Court’s opinion in Commonwealth v. Dunn, supra, the attorney’s basic conclusion that consensual entry would have been a bar to conviction was not erroneous: the facts as developed at trial simply did not establish the type of consent that would be legally sufficient.

9 In her separate opinion, Justice Sosman discusses at some length the difficulties entailed in determining whether a defendant has been prejudiced by incompetent advice, and, if so, the problematic process of fashioning a fair and adequate remedy. These issues are not before us in this case, but have been extensively discussed, considered, and weighed by courts in other jurisdictions. While they are no doubt difficult issues to resolve, they are best resolved in the context of the facts and circumstances of specific cases.