Commonwealth v. Faherty, No. 16–P–1486

• Court: Appeals Court of Massachusetts
• Writing for the Court: DITKOFF, J.
• Citation: 93 Mass.App.Ct. 129,99 N.E.3d 821
• Decision Date: 11 April 2018
• Docket Number: No. 16–P–1486
• Parties: COMMONWEALTH v. Kevin J. FAHERTY.

93 Mass.App.Ct. 129
99 N.E.3d 821

COMMONWEALTH
v.
Kevin J. FAHERTY.

No. 16–P–1486

Appeals Court of Massachusetts, Middlesex..

Argued December 8, 2017
Decided April 11, 2018

Tasha Kates for the defendant.

Gabriel Pell, Assistant District Attorney, for the Commonwealth.

Present: Sacks, Ditkoff, & Singh, JJ.

DITKOFF, J.

99 N.E.3d 823

93 Mass.App.Ct. 130

A District Court jury convicted the defendant, Kevin J. Faherty, of operating under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a )(1). At a subsequent jury-waived trial, a District Court judge convicted the defendant as a fourth offender. We are faced with the question whether a subsequent offense may be based on a prior conviction for which the defendant was not entitled to (and presumably did not receive) appointed counsel because the prior offense carried no risk of incarceration. Concluding that it may be, and rejecting the defendant's challenge to the sufficiency of the evidence, we affirm.

1. Background. At approximately 2:30 P.M. on July 4, 2015, the defendant was injured while riding his motorcycle on Pond Street in Stoneham. A Massachusetts State trooper at the scene of the accident noticed a strong odor of alcohol and later discovered four unopened nip bottles of Jim Beam bourbon in the defendant's saddle bag.

The defendant was transported to a hospital. Hospital records recorded that the defendant's serum alcohol level was 359 milligrams per deciliter. An expert from the Office of Alcohol Testing at the Massachusetts State Police Crime Laboratory testified that this was the equivalent of a blood alcohol level of between .30 percent and .32 percent.

The defendant testified that the accident was caused by his hitting something in the road while momentarily distracted. He testified that he did not drink any alcohol prior to the accident but decided to drink six nip bottles of bourbon to dull the pain while waiting for medical assistance. The jury convicted the defendant on both a theory of impairment and a theory of having a blood alcohol level of .08 percent or higher.

At the jury-waived trial on the subsequent offense portion of the complaint, the Commonwealth presented evidence that the defendant had received a continuance without a finding for OUI in District Court in 1989. The Commonwealth then introduced, over objection, evidence of two convictions for OUI in New Hampshire, from 1992 and 2005. The New Hampshire cases were prosecuted as first offenses, and the defendant received no incarceration but instead was fined and had his license revoked. The judge found the defendant guilty as a fourth offender.

93 Mass.App.Ct. 131

2. Prior offenses. In 1967, the United States Supreme Court held that convictions obtained in violation of the right to counsel as established in Gideon v. Wainwright, 372 U.S. 335, 344–345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), may not "be used against a person either to support guilt or enhance punishment for another offense." Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Accordingly, convictions obtained in violation of the right to counsel may not be used to impeach a defendant's credibility, see Commonwealth v. Saunders, 435 Mass. 691, 694, 761 N.E.2d 490 (2002), or to determine the length of a defendant's sentence. See Commonwealth v. Proctor, 403 Mass. 146, 147, 526 N.E.2d 765 (1988).

Since 2002, Massachusetts courts have employed a presumption of regularity (at least regarding post- Gideon convictions) that the right to counsel in felony cases was honored "unless the defendant first makes a showing that the conviction in issue was obtained without representation by, or waiver of, counsel." Saunders, 435 Mass. at 696, 761 N.E.2d 490. We have applied this presumption to misdemeanors

99 N.E.3d 824

that carry the possibility of incarceration, such as first and second offense OUI, see Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 905, 923 N.E.2d 1062 (2010), and to out-of-State convictions. See Commonwealth v. Cuevas, 87 Mass. App. Ct. 205, 207–208, 27 N.E.3d 411 (2015).

Here, the defendant was unable to rebut the presumption of regularity; the New Hampshire court documents say nothing either way about counsel, and the defendant testified merely that he did not remember. The presumption of regularity, however, can carry the Commonwealth only so far. As the defendant points out, there is (and was) no possibility of incarceration for a New Hampshire first offense of OUI. See N.H. Rev. Stat. Ann. § 265–A:18(I)(a) (2014) ; N.H. Rev. Stat. Ann. § 625:9(IV)(b) (2016).¹ As in Massachusetts, see Lavallee v. Justices in the Hampden Superior Ct., 442 Mass. 228, 241 & n.15, 812 N.E.2d 895 (2004), New Hampshire recognizes no right to appointed counsel in a criminal proceeding in which there is no possibility of incarceration. State v. Weeks, 141 N.H. 248, 250, 681 A.2d 86 (1996). Accord State v. Westover, 140 N.H. 375, 377–379, 666 A.2d 1344 (1995). Accordingly, although we may presume that the defendant's right to retain counsel at his own expense, see Commonwealth v. Cote, 74 Mass. App. Ct. 709, 711, 910 N.E.2d 400 (2009), was properly honored, see Saunders, 435 Mass. at 694, 696, 761 N.E.2d 490, the

93 Mass.App.Ct. 132

presumption of regularity gives us no confidence that the defendant was offered appointed counsel in New Hampshire. Indeed, the presumed regularity would be that the defendant was not offered appointed counsel.

We must, therefore, address the question whether a conviction, properly obtained without the provision of appointed counsel because there was no possibility of incarceration, may be used in a subsequent prosecution for a crime that carries the possibility of incarceration. The United States Supreme Court has squarely held that this is permissible under the Sixth Amendment to the United States Constitution. Nichols v. United States, 511 U.S. 738, 748–749, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994).² The Court observed that enhancement statutes "do not change the penalty imposed for the earlier conviction," and that repeat-offender laws punish "only the last offense committed by the defendant." Id. at 747, 114 S.Ct. 1921. The Court reasoned that the "logical consequence" of the constitutional validity of an uncounseled conviction is that it may be used to "enhance the sentence for a subsequent offense." Id. at 747, 114 S.Ct. 1921. Many, though by no means all, of our sister States have followed suit.³

99 N.E.3d 825

Absent direction from the Supreme Judicial Court, we see no reason why art. 12 of the Massachusetts Declaration of Rights would forbid the use of a constitutionally...