Com. v. Thibeault

• Decision Date: 06 July 1990
• Docket Number: No. 90-P-129,90-P-129
• Parties: COMMONWEALTH v. James THIBEAULT.
• Court: Appeals Court of Massachusetts

Page 403

556 N.E.2d 403

28 Mass.App.Ct. 787

COMMONWEALTH v. James THIBEAULT.

No. 90-P-129.

Appeals Court of Massachusetts Middlesex.

Argued May 24, 1990.

Decided July 6, 1990.

Michael F. Natola, Lynn, for defendant.

Pamela L. Hunt, Asst. Dist. Atty., for Com.

Before SMITH, KAPLAN and FINE, JJ.

KAPLAN, Justice.

This appeal involves ultimately a claim by the defendant-appellant Thibeault that he was deprived of effective assistance of counsel by reason of the fact that his trial attorney was under an order of suspension from practice during the period when he represented him at trial and sentencing.

The narrative begins with the indictment of Thibeault on August 27, 1987, on charges of trafficking in cocaine in an amount in excess of 28 grams, and possessing marihuana with intent to distribute. ¹ He was arraigned on October 1, 1987, and tried, jury-waived, on January 3, 1989. The judge found Thibeault guilty of the lesser included offense of possessing cocaine with intent to distribute, and of the like offense with respect to marihuana, the latter conviction being placed on file with the defendant's consent. On January 19, 1989, the judge sentenced Thibeault to six to ten years imprisonment at M.C.I., Cedar Junction, sentence suspended for three years with conditions that he undergo periodic drug examinations and remain substance free. From the time of arraignment onward, Thibeault was represented by an attorney, Richard B. Modica.

For probation violations, Thibeault was surrendered, and on September 6, 1989, now represented by new counsel, he was brought before the judge who had presided at the trial. After hearing, the judge, finding violations, imposed the original sentence. However, on October 2, 1989, counsel filed a motion for a new trial, which, as supplemented, ² stated that Modica had been suspended from law practice for two years by order of a single justice of the Supreme Judicial Court entered December 29, 1988, ³ and was under suspension during Thibeault's trial and sentencing. This, itself, according to the motion, should be held to have deprived Thibeault of the "assistance of counsel" guaranteed by the Sixth Amendment. In addition, there was a claim that Modica's actual representation of Thibeault at pretrial and trial stages was constitutionally inadequate.

Modica was suspended from practice because he had been convicted of the crime of receiving stolen property (computer equipment taken from a local school), for which he was sentenced to one year's unsupervised probation. ⁴ The record hints at some extenuating circumstances, but the Board of Bar Overseers declined to consider them and took the conviction at face value, and the single justice accepted the board's recommendation of two years' suspension.

To return to the new-trial motion in Thibeault's case, the judge held that the fact Modica was under suspension while representing Thibeault (and failed to inform his client or the trial court) did not, of itself, compel a finding of ineffective assistance.

Going on to the claim that Modica's actual conduct of Thibeault's case was seriously flawed, the judge said, to the contrary, on the basis of his own recollection, that Modica had been "very effective" in securing the reduction of the trafficking charge, and, again, "must have been extremely forceful" to gain for Thibeault the sentence that "let the defendant walk on probation."

Thus the judge denied Thibeault a new trial; and it is from the order of denial that Thibeault takes the present appeal.

1. Per se rule inapplicable. It is now accepted that a person convicted of crime who has unknowingly been represented in the matter by an imposter--one pretending to be an attorney but in fact never licensed to practice anywhere--is entitled to have his or her conviction set aside, even though the representation was without a fault and as proficient as could be expected from the best of lawyers. This "per se" rule was acknowledged in Commonwealth v. Thomas, 399 Mass. 165, 168, 503 N.E.2d 456 (1987), and see, e.g., Harrison v. United States, 387 F.2d 203, 212-213 (D.C.Cir.1967), revd. on other grounds, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); United States v. Hoffman, 733 F.2d 596, 599-600 (9th Cir.) (2-1 decision), cert. denied, 469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984); People v. Felder, 47 N.Y.2d 287, 291, 418 N.Y.S.2d 295, 391 N.E.2d 1274 (1979).

Judge Friendly in Solina v. United States, 709 F.2d 160 (2d Cir.1983), provides an exegesis for the rule. ⁵ Early usages show that the Sixth Amendment, where it speaks of "assistance of counsel," refers to licensed practitioners. Then in Johnson v. Zerbst, 304 U.S. 458, 467, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461 (1938), compliance with the assistance of counsel clause was said to be "an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty" and denial of assistance "a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty" (at 468, 58 S.Ct. at 1024) cognizable on habeas corpus.

Such is the background of the per se rule for imposters, but the result does not go down easily. Judge Friendly calls the invocation of "jurisdiction" a "somewhat surprising thesis": he adds that, had the Justices foreseen the extension of the writ, they might have reconsidered. And "[t]he conclusion," Judge Friendly writes, "that we must reverse the denial of the motion to vacate Solina's conviction is one that we have reached without enthusiasm on the facts here" (the facts showed overwhelming evidence of guilt and solid representation by the layman). 709 F.2d at 169. So the Solina opinion takes care to stress its own limits:

"In so construing the original understanding of the term 'counsel' we do not intimate that any technical defect in the licensed status of a defendant's representative would amount to a violation of the Sixth Amendment. We limit our decision in this case to situations where, unbeknown to the defendant, his representative was not authorized to practice law in any state, and the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character, e.g., Huckelbury v. State, 337 So.2d 400 (Fla. [Dist.Ct.] App.1976)." Id. 709 F.2d at 167, footnote omitted. ⁶

A reading of the run of cases indicates that per se treatment has been pretty well confined as stated in Solina. ⁷ Thus there is no automatic vacation of convictions where licensed attorneys have represented the defendants while under disqualifications for one or another administrative reason, say failure to pay bar dues or omission to take the formal oath upon admission. ⁸ Here falls our Thomas case, where the attorney was suspended for failure to register with the Board of Bar Overseers. 399 Mass. at 168-169, 503 N.E.2d 456. ⁹ The same holds where attorneys licensed in a given jurisdiction have without due authorization represented defendants in another jurisdiction. ¹⁰

In cases of the kinds just cited, there may be consciously unethical conduct where the attorney acts although aware of the administrative lapse. We go on to a handful of cases where the unethical elements in the attorneys' behavior have been more pronounced; still there is reluctance to apply a per se rule which would void criminal convictions fairly arrived at. ¹¹ Plainer still is the attorney's offense to common morality in the present case--here we have the breach by the attorney of a suspension order based on his guilt of a felony (although, as the single justice noted, not an offense related to his practice of law). ¹²

If the question of imposing a per se rule on the present facts were to be examined afresh, we would say, first: on the assumption that there was no material mistake in Modica's advocacy on behalf of Thibeault, little convincing argument can be offered on Thibeault's part for relieving him of his just conviction and granting him a new trial; second: besides his suspension from practice for the commission of crime, Modica should suffer condign discipline for his violation of the suspension order. See United States v. Hoffman, 733 F.2d 596, 599 (9th Cir.1984). ¹³ we conclude that there is no occasion for bestowing an undeserved benefit on Thibeault.

2. Scrutiny of attorney's conduct of criminal litigation. Turning to the claim of ineffective assistance by Modica in the usual sense of inadequate representation of the client, we agree with the suggestion that scrutiny should be particularly careful and discriminating where the attorney at the time was under suspension or other bar from practice. See United States v. Butler, 504 F.2d 220, 223-224 (D.C.Cir.1974), and remarks in a dissent in the Hoffman case, 733 F.2d at 603-604. It should be understood that sound representation comprises not only legal proficiency on the part of the advocate but fidelity to ethical standards, and a question is instantly raised about an attorney's conduct in both aspects when he has been disciplined by suspension from practice and has then violated the suspension order. We note, too, that a contributing reason for a per se rule in the case of the imposter is that the imposter suffers a kind of conflict of interest: the imposter's own consciousness of vulnerability to exposure may affect his or her advocacy by dampening it--and perhaps in ways not easy to discern on the face of a trial transcript. See United States v. Solina, 709 F.2d at 164. ¹⁴ Similar considerations may conceivably enter into the assessment of an attorney's effectiveness in situations not governed by a per se rule. In singular cases there may be reason for redoing the criminal proceedings under better auspices.

On the present record, applying stringently the standard of Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), with the ramifications...