Commonwealth v. Sylvester

• Decision Date: 09 November 2016
• Docket Number: SJC–11966.
• Citation: 62 N.E.3d 502,476 Mass. 1
• Parties: COMMONWEALTH v. William Joseph SYLVESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

476 Mass. 1

62 N.E.3d 502

COMMONWEALTH

v.William Joseph SYLVESTER.

SJC–11966.

Supreme Judicial Court of Massachusetts, Norfolk.

Submitted April 4, 2016.

Decided Nov. 9, 2016.

Jeffrey Harris, Boston, for the defendant.

Susanne M. O'Neil, Assistant District Attorney, for the Commonwealth.

Merritt Schnipper, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

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

& HINES, JJ.¹

HINES

, J.

The issue in this appeal is whether plea counsel was constitutionally ineffective under the right to counsel guaranties of the Sixth Amendment to the United States Constitution or art. 12 of the Massachusetts Declaration of Rights when counsel advised the defendant in 2002 that he would need to “register” if he decided to plead guilty to indecent assault and battery, a sex offense under G.L. c. 6, § 178C

, without explaining the consequences of sex offender registration. We conclude that plea counsel was not constitutionally ineffective in rendering this advice in 2002, although we leave for another day the question whether such advice would be constitutionally ineffective based on the current statutory scheme for sex offender registration. We affirm the decision of the District Court judge denying the defendant's motion to vacate his guilty plea.²

1. Background. We summarize the material facts in the record, reserving certain details for later discussion.³ On July 9, 2002, the defendant, then twenty-three years of age, approached a fifteen

year old female from behind as she was standing with four teenage friends in a subway station in Quincy. The defendant placed his hands on the female's buttocks and began to “massage” them. He also tried to prevent her retreat by running in front of her, grabbing her front pockets, and pulling her close to him.

The defendant walked away, but returned several minutes later and robbed the one male in the group. He first took thirty dollars from a sweater the male was holding and later removed a silver chain from the male's neck. The teenagers asked someone in the subway station to call the police.

The teenagers described the defendant, including a tattoo on his hand, to police. The next day, the police drove the two victims to the subway station in an unmarked vehicle. Approximately one and one-half hours later, both victims simultaneously identified the defendant when he walked into their view. They both identified the silver chain that the defendant was wearing as that belonging to the male victim. The defendant was charged and in November, 2002, pleaded guilty to the indecent assault and battery charge and two counts of larceny from a person. Insofar as relevant here, the plea judge imposed a sentence of eighteen months in a house of correction, six months to be served and the balance suspended, with probation for two years on the indecent assault and battery charge.

In February, 2003, a notice of probation violation was issued to the defendant for committing a new offense, shoplifting, and failing to register as a sex offender with the Sex Offender Registry Board. The defendant was found to be in violation of his probation and was sentenced to serve the remainder of his suspended sentence.

Thereafter, the defendant was convicted for a host of other charges between 2004 and 2013, including the failure to register as a sex offender in 2004, 2007, and 2012. In 2008, the defendant pleaded guilty to the 2008 failure to register charge and a Superior Court judge sentenced the defendant to probation for three years and imposed community parole supervision for life.⁴

In July, 2013, the defendant filed a motion to withdraw his 2002 guilty plea or for a new trial under Mass. R.Crim. P. 30(b)

, as appearing in 435 Mass. 1501 (2001), concerning the indecent assault and battery charge, arguing that his plea counsel was constitutionally ineffective and his plea was therefore involuntary because he did not fully appreciate the consequences of pleading guilty to a sex offense. Specifically, the defendant asserted the following in an affidavit: (1) plea counsel “did not explain to me that the consequences of pleading guilty to indecent assault and battery meant that I would become a sex offender and that I might have to register with the police indefinitely”; (2) on the day of the plea hearing, counsel advised that “I would ‘have to register’ but did not explain what this meant. I had no idea that this meant that I had to report as a sex offender”⁵ ; and (3) “[h]ad I fully understood that ‘registering’ meant that I would be a sex offender and that I would have to register as a sex offender and someday be subject to lifetime community parole, I would not have pleaded guilty to a sex offense.”⁶ The defendant did not present an affidavit from plea counsel. His motion counsel averred that plea counsel had told him that plea counsel did not “remember anything from that time” and did not respond to repeated attempts to obtain an affidavit.

The defendant supported his motion with materials from a disciplinary investigation against plea counsel. In 2007, the Board of Bar Overseers (board) filed a petition of discipline against plea counsel alleging that he intentionally misused client funds from April through September, 2002, and failed to make full restitution.⁷ In mitigation, plea counsel testified at an evidentiary hearing before the board that he was abusing cocaine at the time that he misused funds and did not have the financial resources to complete restitution because of his drug abuse. He testified that “life was nothing but a blur” when he was misusing the funds because he was “using cocaine every day.” The board found that drugs “distorted [counsel's] judgment” and considered his remorse, rehabilitation, and good works in mitigation of the wrongdoing. In 2008, plea counsel was indefinitely suspended from the practice of law for the misuse of and failure to repay client funds.

The motion judge, who was also the plea judge, denied the defendant's motion after concluding, for several reasons, that he had failed to establish that plea counsel was constitutionally ineffective. First, the judge noted that CPSL did not become law until four years after the defendant entered his plea and that counsel was “not required to be clairvoyant.” Second, relying on Commonwealth v. Shindell, 63 Mass.App.Ct. 503, 506, 827 N.E.2d 236 (2005)

, the judge concluded that failure to warn of sex offender registration consequences could not be grounds to vacate a plea on the basis of ineffective assistance of counsel because it is a collateral consequence of conviction. Third, the judge found that it was “clear” that the defendant was warned of the need to register because the defendant admitted as much in his affidavit, the docket reflected the receipt of such warnings, and it was her “custom and practice” to do so during the plea colloquy. Fourth, there was no evidence that counsel was impaired at the time of the plea or that any asserted impairment negatively affected representation. And fifth, the defendant did not demonstrate any prejudice because he had no practical defense and could not credibly suggest that a more favorable plea could have been negotiated considering the strength of the Commonwealth's case against him and the defendant's significant and lengthy criminal record.

The defendant appealed. We allowed his application for direct appellate review.

2. Standard of review. “A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R.Crim. P. 30(b)

.” Commonwealth v. Lavrinenko, 473 Mass. 42, 47, 38 N.E.3d 278 (2015), quoting Commonwealth v. DeJesus, 468 Mass. 174, 178, 9 N.E.3d 789 (2014). We review the denial of a motion to withdraw a guilty plea to “determine whether there has been a significant error of law or other abuse of discretion.” Lavrinenko, supra, quoting Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). “A judge may make the ruling based solely on the affidavits and must hold an evidentiary hearing only if the affidavits or the motion itself raises a ‘substantial issue’ that is supported by a ‘substantial evidentiary showing.’ ” Commonwealth v. Scott, 467 Mass. 336, 344, 5 N.E.3d 530 (2014), quoting Commonwealth v. Stewart, 383 Mass. 253, 260, 418 N.E.2d 1219 (1981).

“Particular deference is to be paid to the rulings of a motion judge who served as the [plea] judge in the same case.” Scott, supra, citing Commonwealth v. Leavitt, 21 Mass.App.Ct. 84, 85, 484 N.E.2d 1032 (1985)

.

3. Discussion. “Generally, under Massachusetts law, defense counsel's failure to inform a defendant of collateral or contingent consequences of a plea does not render a plea involuntary.” Commonwealth v. Roberts, 472 Mass. 355, 362, 34 N.E.3d 716 (2015)

, quoting Shindell, 63 Mass.App.Ct. at 505, 827 N.E.2d 236. In the Shindell case, the Appeals Court concluded, on this basis, that defense counsel is not constitutionally required to warn of sex offender registration consequences. See Shindell, supra at 508, 827 N.E.2d 236, citing Commonwealth v. Fraire, 55 Mass.App.Ct. 916, 918, 774 N.E.2d 677 (2002). The defendant argues, however, that the United States Supreme Court, in Padilla v. Kentucky, 559 U.S. 356, 364–366 & n. 8, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), abrogated the distinction between direct and collateral consequences and created a new framework for determining whether a consequence of conviction has a uniquely “close connection” to the criminal process to require warnings under the right to counsel guaranties of the Sixth Amendment. Under that framework, the defendant asserts that, to provide constitutionally effective assistance, counsel must warn clients about consequences of sex offender registration when they are considering whether to plead guilty to a “sex offense” as defined in G.L. c. 6, § 178C

.

In the Padilla case, the Supreme Court considered for the first time whether the Sixth Amendment applied to...