Commonwealth v. Balliro

• Decision Date: 04 February 2002
• Citation: 769 NE 2d 1258,437 Mass. 163
• Parties: COMMONWEALTH v. ROCCO A. BALLIRO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

437 Mass. 163

769 NE 2d 1258

COMMONWEALTH v. ROCCO A. BALLIRO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 4, 2002.

June 14, 2002.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Russell J. Redgate for the defendant.

Jane A. Sullivan, Assistant District Attorney, for the Commonwealth.

IRELAND, J.

After (1) pleading guilty to two indictments charging murder in the first degree in 1965, (2) his first unsuccessful motion to withdraw his guilty pleas, based on coercion, and (3) an unsuccessful petition for habeas corpus, the defendant, Rocco A. Balliro, alleged in his second motion to withdraw his guilty pleas that his plea counsel rendered ineffective assistance because he was subject to a conflict of interest and gave the defendant either no advice or erroneous advice concerning his guilty pleas. Because we conclude that (1) the defendant's arguments of ineffective assistance are waived and (2) his claim of conflict of interest is merely a restatement of his earlier claim of coercion, which we decided on his first motion to withdraw his guilty pleas, we affirm the denial of the second motion.

The defendant's appeal was entered directly in this court. The defendant also entered a petition in the county court. That case for "gatekeeper" permission to appeal from the denial of the motion for a new trial was accompanied by a letter from counsel on the present motion maintaining that a single justice's permission was not required, but that supporting material would be filed immediately, if necessary. When the petition was considered for dismissal for lack of prosecution in November, 2001, the defendant requested that it remain on the docket. In December, the single justice allowed the defendant's request.

We have held that the gatekeeper provision of G. L. c. 278, § 33E, does not apply to cases in which a defendant appeals from the denial of a motion for a new trial after pleading guilty to murder in the first degree. See Commonwealth v. Robbins, 431 Mass. 442, 443 n.1 (2000). "The `gatekeeper' provision comes into play only after a defendant, in a direct appeal, has had the benefit of the comprehensive review that the statute provides." Id. A technical reading of the statutory language supports the same result. General Laws c. 278, § 33E, defines a capital case as "a case in which the defendant was tried on an indictment for murder in the first degree and was convicted of murder in the first degree" (emphasis added). A defendant who pleads guilty to murder in the first degree has not been "tried" within the meaning of the statute.

We have not addressed the question whether a defendant appealing from the denial of a motion for a new trial in a capital case not subject to the gatekeeper provision has a right to direct review in this court. We conclude no such right exists. An appeal from the denial of a motion for new trial "may be taken to the Appeals Court." Mass. R. Crim. P. 30 (c) (8), as appearing in 420 Mass. 1502 (1995). Although G. L. c. 211A, § 10, excludes "review of convictions for first degree murder" from the Appeals Court's jurisdiction, we interpret the exclusion to be conterminous with our exclusive jurisdiction embodied in G. L. c. 278, § 33E.

Despite the fact that a defendant pleading guilty to murder in the first degree faces the same uniquely severe sentence as a defendant convicted at trial, weighing heavily in support of the plenary review available under G. L. c. 278, § 33E, the issue in an appeal from the denial of a motion for a new trial is the propriety of the judge's decision on the motion and not the conviction itself. Furthermore, a defendant choosing to plead guilty to murder in the first degree voluntarily waives the special form of review applied under § 33E. Appeals from the denials of motions for new trials in capital cases that are not subject to the provisions of § 33E are properly docketed in the Appeals Court.

We retain jurisdiction in the instant case and reach the defendant's claims, noting that we have the power to transfer cases from the Appeals Court sua sponte.

We need not recite the facts of this case as we have already done so. Commonwealth v. Balliro, 349 Mass. 505 (1965) (Balliro I). Commonwealth v. Balliro, 370 Mass. 585, 586 (1976) (Balliro II).

The defendant appeals from the denial of his second motion to set aside his guilty pleas claiming that he was deprived of the effective assistance of counsel. He alleges that his plea counsel, Attorney Collichio, was ineffective because of a conflict of interest both in representing the codefendant Albert Ciocco in the same case prior to the trial, and because Collichio was beholden to Attorney Joseph Balliro, who represented the defendant's brother in the same matter, because Attorney Balliro was a mentor to Collichio. The defendant also alleges that Collichio failed to give him effective assistance because he gave either erroneous advice or no advice to the defendant with respect to his choice to plead guilty to murder in the first degree. We conclude that the defendant has waived these arguments by not presenting them in his first motion to withdraw his guilty pleas, that his conflict claims merely reassert his prior claims that his pleas were coerced, and that the judge's decision to deny the instant motion was not an abuse of discretion. An accepted guilty plea differs from an admission or extrajudicial confession in that it is itself a conviction; nothing more is required except for the court to give judgment and sentence. See Commonwealth v. Robbins, supra at 444, quoting Commonwealth v. DeMarco, 387 Mass. 481, 481 (1982), and cases cited. Thus, a postsentence motion to withdraw a guilty plea is a request for postconviction relief and is treated as a motion for a new trial. Commonwealth v. Robbins, supra.

"A motion for new trial is addressed to the sound discretion of the [motion] judge, and the judge's disposition of the motion will not be reversed unless `it appears that justice may not have been done.'" Id., quoting Commonwealth v. Russin, 420 Mass. 309, 318 (1995), and cases cited.

The defendant's failure to raise the argument that Collichio rendered him ineffective assistance of counsel in his first motion constituted waiver. Rule 30 (c) (2) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 900 (1979), provides: "All grounds for relief claimed by a defendant under ... this rule shall be raised by the defendant in his original or amended motion. Any grounds not so raised are waived unless the judge in his discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion." See Commonwealth v. Deeran, 397 Mass. 136, 139 (1986) (defendant must raise all available grounds for relief in first rule 30 motion or "those claims are lost"). A motion for a new trial may not be used to compel the review of issues on which the defendant has already had appellate review or issues on which the defendant has forgone the Opportunity. See Commonwealth v. Gagliardi, 418 Mass. 562, 565 (1994), cert. denied, 513 U.S. 1091 (1995), quoting Commonwealth v. Watson, 409 Mass. 110, 112 (1991). A judge does, however, have the discretion to rehear such issues. See Commonwealth v. Watson, supra.

We have recommended restricting the exercise of that power to the extraordinary situations when "upon sober reflection, it appears that a miscarriage of justice might otherwise result." Id. The waiver rule applies equally to constitutional claims that could have been, but were not raised. Id.

The defendant argues that he has not waived his claims of the ineffectiveness of his plea counsel, Collichio, because his counsel on his first motion to withdraw his guilty pleas, Attorney Hutton, was also ineffective. He asserts that Hutton suffered from conflicts of interest identical to those of Collichio and also that Hutton's failure to raise the ineffectiveness of Colicchio constituted ineffective assistance on Hutton's part. Although the defendant correctly states that he cannot be held to have waived a basis of relief when the failure to raise it results from ineffective assistance, see Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 17-18 (1986) (discussing exceptions to waiver rule), we reject his arguments and dispose of them in turn.

1. Conflict of interest. The defendant maintains that he cannot be held to have waived his ineffectiveness claims because Hutton was also ineffective due to conflicts of interest. He asserts that Hutton suffered from a conflict of interest because he represented one of the codefendants in the same case at the trial, on appeal, and at the plea hearing. He also alleges that Hutton suffered from a personal conflict of interest because he was "beholden" to Attorney Balliro, representing a codefendant in the same case, in a mentor and protege relationship. We conclude that the defendant has failed to demonstrate any conflict.

We apply the standards controlling conflicts of interest in use at the time of the defendant's first motion, although the standards then in operation do not differ substantially from those we apply today. A defendant is denied effective assistance of counsel when his attorney represents interests in conflict with the defendant's. Commonwealth v. Smith, 362 Mass. 782, 783 (1973). The defendant must produce evidence of the conflict of interest he claims deprived him of effective assistance of counsel. See id. at 784; Commonwealth v. LaFleur, 1 Mass. App. Ct. 327, 331-332 (1973) (bare assertions not enough; conflict must be shown by evidence). If a conflict of interest is plain from the record, a showing of prejudice is not required. See Commonwealth v. Smith, supra at 784-785 n.1 (hinting that no prejudice analysis required when a genuine conflict appears, a rule that has since been firmly established, Commonwealth v. Patterson, 432 Mass. 767,...