Commonwealth v. Roberts

• Decision Date: 30 July 2015
• Docket Number: SJC–11825.
• Parties: COMMONWEALTH v. Joseph L. ROBERTS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

472 Mass. 355

34 N.E.3d 716

COMMONWEALTH

v.Joseph L. ROBERTS.

SJC–11825.

Supreme Judicial Court of Massachusetts, Plymouth.

Submitted April 7, 2015.

Decided July 30, 2015.

Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

Jeanne M. Kempthorne, Salem, for the defendant.

Jeffrey G. Harris, Boston, for William J. Sylvester, amicus curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

CORDY

, J.

In 2005, the defendant pleaded guilty to several sexual offenses, including forcible rape, committed against three children. Neither his defense counsel nor the judge who accepted his guilty pleas informed the defendant that his sexual offense convictions could, pursuant to G.L. c. 123A, serve as a predicate for civil confinement as a sexually dangerous person for from one day to life. Although each conviction of forcible rape of a child carried a maximum sentence of life in prison, by pleading guilty to them the defendant obtained a sentence of from not less than nine to not more than thirteen years in the State prison.

Subsequently, after learning of the possibility of a lifetime of civil confinement, the defendant moved to withdraw his guilty pleas. A judge in the Superior Court allowed the defendant's motion on the ground that the failure of the plea judge to inform the defendant of possible civil commitment violated due process and Mass. R.Crim. P. 12(c)(3)(B)

, as appearing in 442 Mass. 1511 (2004) (rule 12 ).¹ The fulcrum of the judge's decision was an analogy to Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), a case in which the United States Supreme Court held that the failure of counsel to advise a noncitizen that his or her guilty plea likely would lead to deportation constituted ineffective assistance of counsel under the Sixth Amendment to the United States Constitution.

We conclude that the analogy to Padilla is inapt. Nonetheless, given the significant deprivation of liberty at stake, we also conclude that the defendant may withdraw his plea if he can establish a reasonable probability that he would not have pleaded guilty had he been informed by the judge of the possibility of future civil confinement as required by rule 12

. Because the record is not fully developed on this point, we vacate the order allowing the defendant to withdraw his guilty pleas and remand the matter for further findings and rulings germane to the correct legal standard.²

1. Background. We summarize the material facts in the record, reserving certain details for the issues raised on appeal. In November, 2002, the defendant was indicted on five counts of rape of a child under sixteen years of age by force, in violation of G.L. c. 265, § 22A

; four counts of rape of a child under sixteen years of age, in violation of G.L. c. 265, § 23 ; four counts of indecent assault and battery of a child under fourteen years of age, in violation of G.L. c. 265, § 13B ; and one count of assault and battery, in violation of G.L. c. 265, § 13A (a ). The indictments were premised on a series of sexual acts committed against three children over a period of six years.

According to the affidavits and other materials submitted in support of the defendant's motion to withdraw his guilty pleas, in April, 2003, he first met with the attorney whom he hired to represent him in defending against these charges. His attorney was frequently unreachable by telephone to discuss the case, missed several court dates, and did not meet with the defendant again until around January, 2005.³ On February 1, 2005, the defendant met with the attorney for about five minutes in a hallway in the court house. The attorney advised him that he was not prepared to go to trial, that he had “brokered” a deal with the judge, and that the defendant had to plead guilty to get the deal. He did not advise the defendant that pleading guilty could serve as a predicate for his civil confinement as a sexually dangerous person pursuant to G.L. c. 123A.

The next day, the defendant pleaded guilty to each of the fourteen counts. A judge in the Superior Court (plea judge) conducted a colloquy in which she advised the defendant of several consequences of his pleas, but did not mention the possibility of civil confinement as a sexually dangerous person. The judge inquired whether the defendant was under the influence of alcohol or drugs; the defendant stated that he had taken only prescribed medications and confirmed that he understood the consequences of his pleas. The judge accepted the pleas and sentenced the defendant to concurrent terms resulting in an aggregate sentence of not less than nine to not more than thirteen years in the State prison. The defendant was also sentenced to five years of probation, ordered to participate in sexual offender treatment, and notified of his obligation to register as a sexual offender.

Soon thereafter, the defendant had second thoughts about the sentences he received and contacted his attorney, who filed a motion to revoke and revise the sentences, which motion was denied. The defendant was then provided with appellate counsel by the Committee for Public Counsel Services (CPCS). Although civil confinement proceedings had not—and have still not—been commenced, the defendant learned of the possibility that he could be confined as a sexually dangerous person as a consequence of his convictions. The defendant requested that his appointed appellate counsel file a motion to withdraw his guilty pleas on the grounds that, inter alia, his plea counsel was ineffective and that he was never advised of the possibility of civil confinement as a consequence of his pleas. Appellate counsel declined to include these arguments in the motion because they detracted from what counsel viewed as the defendant's strongest argument, which was that the defendant was not mentally competent at the time of his guilty pleas. The defendant's motion to withdraw his pleas was denied without a hearing. In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed, and we denied the defendant's application for further appellate review. See Commonwealth v. Roberts, 73 Mass.App.Ct. 1116, 899 N.E.2d 918

, S.C., 453 Mass. 1107, 904 N.E.2d 430 (2009).

Subsequently, in 2009, the defendant filed pro se a second motion to withdraw his guilty pleas, this time asserting the claims of ineffective assistance of counsel and the judge's failure to advise him of the possibility of civil confinement. The defendant was appointed new counsel and an evidentiary hearing was held on the defendant's motion. A judge in the Superior Court (not the judge who accepted the guilty pleas) allowed the defendant's motion to withdraw his pleas on the ground that the plea judge's failure to advise the defendant of the possibility of civil confinement violated due process and rule 12

.⁴ The motion judge did not address the defendant's ineffective assistance of counsel argument. The Commonwealth appealed, and we transferred the case to this court on our own motion.

2. Discussion. a. Waiver. “A postsentence motion to withdraw a plea is treated as a motion for a new trial.” Commonwealth v.

Berrios,

447 Mass. 701, 708, 856 N.E.2d 857 (2006), cert. denied, 550 U.S. 907, 127 S.Ct. 2103, 167 L.Ed.2d 819 (2007), quoting Commonwealth v. Conaghan, 433 Mass. 105, 106, 740 N.E.2d 956 (2000). Any grounds for relief not raised by the defendant in his original or amended motion for a new trial are “waived unless the judge in the exercise of 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.” Mass. R.Crim. P. 30(c)(2), as appearing in 435 Mass. 1501 (2001). “ The rule of waiver ‘applies equally to constitutional claims which could have been raised, but were not raised’ on direct appeal or in a prior motion for a new trial.” Commonwealth v. Watson, 409 Mass. 110, 112, 565 N.E.2d 408 (1991), quoting Commonwealth v. Deeran, 397 Mass. 136, 139, 490 N.E.2d 412 (1986). We have recommended that judges restrict the exercise of their discretion to review previously unraised claims to “those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result.” Id., quoting Fogarty v. Commonwealth, 406 Mass. 103, 107–108, 546 N.E.2d 354 (1989).

The Commonwealth contends that the motion judge abused his discretion by considering the new arguments contained in the defendant's second motion to withdraw his guilty pleas. We disagree. It was undisputed that the plea judge failed to properly inform the defendant pursuant to rule 12

regarding the possibility of a future civil confinement, and that plea counsel had been reprimanded in connection with his representation of the defendant in the underlying proceedings.⁵ The defendant specifically requested that his appointed appellate counsel make arguments regarding ineffective assistance of counsel and the failure of the plea judge to advise him of possible civil confinement. When counsel declined to do so, the defendant complained to CPCS and was told that he had to accept his attorney's judgment or proceed without the assistance of CPCS.

Although the judge did not address the Commonwealth's waiver argument in his decision, it strikes us as rather harsh that a defendant—who suffered from significant mental health conditions—would be required to choose between being represented by appointed counsel and asserting a claim that affected substantially his liberty interest, particularly where that claim derived from deficiencies that were apparent in the record. See Commonwealth v. Pariseau, 466 Mass. 805, 808, 2 N.E.3d 859 (2014)

(civil confinement implicates liberty interest and due process protections). Considering the unusual circumstances presented by this case, the judge did not abuse his discretion in considering the new arguments...