Com. v. Pingaro
| Decision Date | 15 December 1997 |
| Docket Number | No. 96-P-920,96-P-920 |
| Citation | 44 Mass.App.Ct. 41,693 N.E.2d 690 |
| Parties | COMMONWEALTH v. Joseph PINGARO. |
| Court | Appeals Court of Massachusetts |
Francis J. Hurley, South Boston, for defendant.
John P. Zanini, Assistant District Attorney, for the Commonwealth.
Before PERRETTA, LAURENCE and LENK, JJ.
Joseph Pingaro has appealed from a Superior Court judge's order denying his October, 1994, motion to withdraw guilty pleas he offered, and on which he was convicted and sentenced, in March, 1979. Pingaro filed this motion, over fifteen years after his guilty pleas, only after he pleaded guilty in 1993, in the United States District Court for the District of Massachusetts, to charges of extortion, witness tampering, obstruction of justice, and perjury (five counts), following which he received an enhanced Federal sentence based, in part, upon his 1979 State convictions. 1 Because no transcript of his guilty plea proceedings has survived, Pingaro asserts that the Commonwealth cannot establish that he entered his 1979 pleas voluntarily and knowingly and that he should consequently receive a new trial. We affirm the denial of his motion.
A Massachusetts grand jury indicted Pingaro in February 1978, for conspiracy to distribute cocaine, two counts of unlawful distribution of cocaine, and unlawful possession of a handgun. The police reports and the evidence presented to the grand jury revealed that Pingaro had been caught red-handed in mid-January, 1978, participating with two codefendants in the sale of four ounces of cocaine to an undercover police officer, after having been involved the previous day in the sale of one ounce of cocaine to the same officer. Pingaro had also displayed to the officer a pistol that he said he used to protect drug transactions.
Following Pingaro's pleas of not guilty to the indictments, his case was on the trial list for ten months; his trial date was set, then continued, three times with his agreement; and, by his own acknowledgment, 2 was ultimately resolved after extensive plea negotiations by a "package deal." The "deal" resulted in guilty pleas by all three defendants and extremely favorable dispositions for Pingaro and his colleagues. 3 At all relevant times Pingaro was represented by private counsel of his own choosing.
The docket sheets reflect that all the guilty pleas were accepted by Boston Municipal Court Judge Richard Banks, who was sitting in the Superior Court by designation, only "after hearing." The affidavits supporting Pingaro's motion for withdrawal of his guilty pleas concede that a "plea hearing" occurred (although he now denigrates it as "extremely brief, lasting no more than five minutes"). However, because Pingaro never requested a copy of the hearing transcript, the stenographer's notes of the hearing were lawfully destroyed after six years, in the ordinary course of business, pursuant to S.J.C. Rule 1:12, 382 Mass. 717 (1981).
Within three weeks of his guilty pleas, Pingaro filed, through his trial attorney, a motion to revise his sentences on the distribution counts, on the ground that his codefendant, who was the actual supplier of the drugs in the first transaction, was more culpable, yet had received a lesser sentence on his guilty plea than had Pingaro, a mere "liaison" between seller and buyer with a less extensive criminal record. In May, 1979, Judge Banks reduced Pingaro's sentences to one year to be served, the balance suspended and three years of probation. Judge Banks subsequently died. In November, 1982 (while the stenographer's notes of his plea hearing were still intact), Pingaro, having served his sentence and completed his probation without incident, successfully petitioned a different judge to seal his criminal record because of a job opportunity. His next court experience came eleven years later, in connection with the Federal charges discussed earlier.
Pingaro's October, 1994, "motion for withdrawal of guilty plea and allowance of a new trial" was supported solely by his own affidavit. It alleged that Judge Banks had failed in March, 1979, to provide Pingaro with any colloquy whatsoever, and specifically recited that the judge had failed: (a) to inform him of the several constitutional rights he would be waiving by pleading guilty; (b) to inquire whether he was under the influence of drugs or alcohol or otherwise incapable of making a knowing and intelligent decision to change his plea; (c) to inform him of the essential elements of the crimes to which he was pleading guilty; or (d) to determine whether Pingaro had received adequate and effective assistance of counsel. Pingaro also claimed that there was no evidence presented at the plea hearing linking him to those crimes.
On April 10, 1995, the Commonwealth filed its opposition to Pingaro's motion, stressing that Pingaro's affidavit was not credible; that Pingaro had not contended that he was in fact unaware of the rights he waived when he pleaded guilty or was in fact then under any improper or disabling influence; and that Pingaro had failed to make any specific claim of ineffectiveness of counsel. The Commonwealth maintained that, under the circumstances, Pingaro's bald assertions were not sufficient to place the burden on the Commonwealth of establishing that Pingaro's presumptively regular guilty pleas had been constitutionally valid.
On April 11, 1995, one day after the Commonwealth's opposition, Pingaro filed and served an affidavit from his cousin, Peter Modica (who was also his trial attorney's cousin), in which Modica averred that he had been in the courtroom at Pingaro's "extremely brief" plea hearing and that Judge Banks had never advised Pingaro of any rights he was waiving by pleading guilty. Eight days after the Commonwealth's opposition, on April 18, 1995, Pingaro submitted his own "supplementary affidavit." In it he asserted (without indicating why it had taken him until then to raise such issues) that his guilty pleas had been the product of his attorney's "pressure" to "go along" with an "all or nothing package deal" encompassing all the defendants. (Pingaro described the alleged "pressure" as the need to help out a codefendant whose wife was dying of cancer.) The supplementary affidavit also charged that Pingaro's attorney had a "conflict of interest" because he also represented one codefendant, had "previously" represented the other, and had "engaged in plea negotiations" on behalf of all the defendants. The attorney had also (the affidavit claimed, without any specification of how the omitted explanations would have affected Pingaro's pleas) never explained "the potential for a conflict of interest"; or Pingaro's "possible options ... in defending the case"; or "the possibility of seeking a severance for a separate trial"; or "that [Pingaro] could have challenged the validity of the conviction."
On April 25, 1995, a nonevidentiary hearing on Pingaro's motion to withdraw his pleas was held, after having been continued from April 12, 1995, the originally scheduled date. The motion judge refused Pingaro's request to present live testimony from Pingaro's cousin as a purported eyewitness to the 1979 plea proceedings but did accept a "supplementary affidavit" from the cousin. That affidavit represented that Pingaro had "no real criminal record" when he pleaded guilty in 1979, at an "extremely brief ... five minute hearing"; that Pingaro had been "confused and unsure of himself," had been "very reluctant" to plead guilty, and was immediately "upset about making the plea"; and that the judge had given no explanation or advice to Pingaro at the hearing about any rights he was waiving. The affidavit contained no allegations regarding the supposed shortcomings of counsel raised in Pingaro's own supplementary affidavit.
At the hearing on the plea withdrawal motion, Pingaro's counsel presented a simple argument relying on Commonwealth v. Foster, 368 Mass. 100, 330 N.E.2d 155 (1975): Pingaro's affidavits established his plea proceeding had been fatally inadequate, and the Commonwealth could not sustain its burden of demonstrating by a contemporaneous record that his guilty pleas had been knowing and voluntary. Counsel for the Commonwealth reiterated that Pingaro's motion and affidavits were so untimely, conclusory, and suspect as to be entitled to no credit, and that under the circumstances the Commonwealth had no burden to reconstruct the plea proceedings or otherwise justify the validity of Pingaro's guilty pleas because Pingaro's papers had failed to present a credible claim of error triggering such a burden. 4
The motion judge rejected the allegations in the affidavits submitted by Pingaro, whom she characterized as "a convicted perjurer." The judge found Pingaro's belated claims of ineffective assistance of counsel to be "disingenuous" as well as contradicted by the record, which demonstrated that Pingaro's counsel had successfully obtained "a fairly light sentence" for him in return for his plea, despite the fact that Pingaro "was more culpable" in the drug transactions than the jointly represented codefendant who received the same sentence. 5 The judge did not, however, address the Commonwealth's principal argument, that Pingaro had failed to carry his burden as a new trial movant of coming forward with credible factual assertions to support his challenge to the validity of his guilty pleas beyond his self-serving, conclusory affidavits. Instead, the judge accepted the Commonwealth's subsidiary contention, that the contemporaneous extant record warranted the inference that Pingaro's pleas were knowing and voluntary. The judge found that, though reconstruction was difficult, 6 the record could be reconstituted sufficiently to conclude that there was no substance to Pingaro's attack on his pleas.
The judge found particularly significant the following facts (none of which Pingaro challenges): Pingaro was...
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