Commonwealth v. Mahar, SJC-09050 (MA 6/7/2004), SJC-09050
| Decision Date | 07 June 2004 |
| Docket Number | SJC-09050 |
| Parties | COMMONWEALTH vs. RICHARD MAHAR. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
Practice, Criminal, Assistance of counsel, Agreement between prosecutor and defendant. Constitutional Law, Assistance of counsel. Armed Home Invasion.
Indictment found and returned in the Superior Court Department on March 3, 1997.
Following review by this court, 430 Mass. 643 (2000), a motion for a new trial, filed on May 30, 2001, was heard by Thomas E. Connolly, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Charles W. Rankin for the defendant.
Paul B. Linn, Assistant District Attorney, for the Commonwealth.
Thomas F. Reilly, Attorney General, & David M. Lieber, Assistant Attorney General, amicus curiae, submitted a brief.
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 friend 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) (); Hill v. Lockhart, 474 U.S. 52, 56 (1985), quoting McMann v. Richardson, 397 U.S. 759, 771 (1970) (); Commonwealth v. Soffen, 377 Mass. 433, 436 (1979) (). 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) ().
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 (); Tse v. United States, 290 F.3d 462, 463, 466 (1st Cir. 2002) (); Paters v. United States, 159 F.3d 1043, 1044, 1048-1049 (7th Cir. 1998) (); Toro v. Fairman, supr...
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