Commonwealth v. Vasquez

• Decision Date: 13 August 2020
• Docket Number: SJC-12562
• Parties: COMMONWEALTH v. Pedro VASQUEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

485 Mass. 405

150 N.E.3d 723

COMMONWEALTH

v.Pedro VASQUEZ.

SJC-12562

Supreme Judicial Court of Massachusetts, Hampden..

Argued December 6, 2018

Decided August 13, 2020

Calvin C. Carr, pro se.

Juan M. Rivera, Springfield, pro se.

Katherine E. McMahon, Assistant District Attorney (Maximilian J. Bennett, Assistant District Attorney, also present) for the Commonwealth.

Daniel P. Sullivan for Executive Office of the Trial Court.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LENK, J.

The defendant, who at all relevant times was and continues to be indigent, was charged with murder in the first degree and two firearm-related offenses in April, 2015. He was convicted in February 2020 of murder in the second degree and the two firearm offenses. He has appealed, but his appeal has not yet been entered in the Appeals Court.

Before trial, the defendant filed several motions to suppress a variety of evidence, including witness identifications, evidence obtained from a search of his cell phone, cell site location information, and statements he had made to police in a custodial interrogation. A judge in the Superior Court denied most of the motions but allowed the motion to suppress the custodial statements. Both sides sought leave to appeal from the rulings that were adverse to them, pursuant to Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017), and a single justice of this court granted both sides' applications. On appeal, we affirmed in part and reversed in part the Superior Court judge's rulings. Commonwealth v. Vasquez, 482 Mass. 850, 852, 130 N.E.3d 174 (2019) ( Vasquez I ).

The matter now before us concerns a request for attorney's fees made by an attorney who claims to have been privately retained by the defendant for the sole purpose of opposing the Commonwealth's application for leave to appeal. See Mass. R. Crim. P. 15 (d), as amended, 476 Mass. 1501 (2017). The attorney asks to be paid slightly more than $40,000 for that purpose.

For the reasons that follow, we hold that no attorney's fees are required under rule 15 (d) in this situation. Rule 15 (d) is meant to reimburse defendants who pay for their own counsel with their own funds; it is not meant for attorneys who represent defendants whom they know to be indigent, and from whom they never expect to receive payment, even if, as here, the attorney claims to have been privately retained.

Facts. At his arraignment, the defendant was determined to be indigent, see S.J.C. Rule 3:10, as appearing in 475 Mass. 1301 (2016); Superior Court Rule 53, as amended (Nov. 17, 1986), and attorney Calvin C. Carr was appointed to represent him. Mr. Carr represented the defendant in all of the proceedings in the Superior Court, including on the motions to suppress and at trial. As court-appointed counsel, he was to be compensated for his services by the Committee for Public Counsel Services (CPCS). Mr. Carr was assisted, behind the scenes, by attorney Juan M. Rivera, who also represented the defendant as a court-appointed counsel in a different criminal case in the District Court. Mr. Rivera did not enter an appearance in the murder case, was not assigned to the matter in any capacity by CPCS, and apparently was not being paid by Mr. Carr, CPCS, or the defendant for any assistance he was providing.¹

After the defendant's motions to suppress were decided, both sides indicated that they intended to appeal, and toward that end both sides filed applications in the county court requesting leave to appeal. See Mass. R. Crim. P. 15 (a) (2).² The Commonwealth filed its application first, on November 2, 2017, and the defendant filed his application on November 6, 2017. The defendant's application was signed and filed by Mr. Carr, although we now know that Mr. Rivera actually wrote the application. Mr. Carr acknowledges that he only signed and filed it. A question also arose along the way as to who would write the defendant's opposition to the Commonwealth's application. Because of the press of other important work, Mr. Carr asked Mr. Rivera to take on that task as well.³ Mr. Rivera, feeling exhausted from having written the defendant's application, and having already contributed a significant amount of assistance without being paid, said that he could not take on that additional task without being paid. Mr. Carr represents that he then advised Mr. Rivera that, in order to be paid, he would have to get assigned to the case by CPCS.

The plot thickens. Neither Mr. Carr nor Mr. Rivera contacted CPCS about getting Mr. Rivera assigned to the case. Instead, Mr. Rivera entered into a written "fee agreement" with the defendant, whereby the defendant purported to promise to pay Mr. Rivera $250 an hour to represent him in opposition to the Commonwealth's application. Mr. Rivera candidly acknowledges that, at the time he entered into this agreement with the defendant, he knew that the defendant was indigent and had no means to pay him, and indeed he acknowledges that he never expected to be paid anything by the defendant, at any time. With respect to actual payment, the agreement provided in relevant part:

"It is understood that the Attorney shall make an application to the appropriate appellate court for costs pursuant to Mass. R. Crim. P. 15 (d) and the Client hereby assents to the Attorney's recovery of said fee and relinquishes any claim to any award of costs or fees by the appropriate appellate court.

"...

"It is understood by the parties that the Attorney shall recover his fees and costs upon application to the appropriate appellate court pursuant to Massachusetts Rules of Criminal Procedure 15 (d). The Client shall take all steps necessary, as requested by the Attorney, to submit any affidavits and/or other documentation or evidence necessary for the Attorney to present said application to the court."

In short, the defendant and Mr. Rivera had entered into an agreement which nominally obligated the defendant to pay Mr. Rivera $250 an hour for his services -- but which they both knew full well the defendant could not and would not ever pay -- with the expectation that the payment would be sought from, and made by, the district attorney and the Trial Court via a court order under rule 15 (d).^{4 ,5} Mr. Rivera then wrote, signed, and filed the defendant's opposition to the Commonwealth's application.⁶

It was only after Mr. Rivera completed and filed his work that CPCS learned of Mr. Rivera's involvement. That fact came to light when Mr. Carr sent an e-mail message to CPCS's director of criminal appeals for its private counsel division, which stated in its entirety: "Need appellate counsel -- Juan Rivera is responding to [Commonwealth's] petition -- may make sense to have him assist here[.] Let me know your thoughts[.] Thanks." This appears to have been written in anticipation of one or both of the applications being allowed and the defendant needing counsel assigned by CPCS for an appeal to the full court. There followed a series of e-mail messages between CPCS, Mr. Carr, and Mr. Rivera. In a nutshell, CPCS seemed to be surprised to learn of Mr. Rivera's involvement in the case and questioned how he expected to be paid for the work he had done, to which Mr. Rivera replied that he was "privately retained solely for the Commonwealth's [r]ule 15 (a) (2) appeal response by the defendant." CPCS expressed skepticism about his being paid in these circumstances under rule 15 (d), citing Commonwealth v. Sparks, 431 Mass. 299, 727 N.E.2d 78 (2000). Mr. Rivera responded that the situation in the Sparks case was different because in that case there was no contract between the client and the appellate attorneys, whereas in this case "there is a contract retaining me directly as appellate counsel by [the defendant], with a reference to [ rule] 15 (d) for payment." When asked by CPCS how he would be paid if the motion for fees were denied, Mr. Rivera responded: "A motion to reconsider. Failing that, what is your opinion? Associate counsel voucher?^{[7 ]} I don't see the legal basis for the judge to do that under these circumstances. The facts are distinguishable from Sparks in many ways."

As stated, a single justice of this court granted both the defendant's application and the Commonwealth's application (over Mr. Rivera's opposition), and the cases then proceeded to the full court.⁸ CPCS assigned another attorney (one certified by CPCS to handle such appeals) to handle the two appeals.⁹ There is no indication in the record before us, one way or the other, whether Mr. Rivera assisted with the appeals. We note only that he did not file an appearance in the case when it was before the full court, until after we decided it.

After we issued our opinion, see Vasquez I, supra, Mr. Rivera filed a request for attorney's fees and costs in the full court, pursuant to rule 15 (d), which the Commonwealth opposed. He seeks to be compensated, as a privately retained attorney, for writing and filing in the county court the defendant's opposition to the Commonwealth's application for leave to appeal. Specifically, he seeks fees in the amount of $40,125 and costs in the amount of $302.40.¹⁰ He does not seek any compensation for the work he did behind the scenes on the defendant's application for leave to appeal, or for any work he may have done behind the scenes in the full court. The Commonwealth opposes both the entitlement to a fee in these circumstances and the amount of the fees sought.¹¹

We referred Mr. Rivera's fees motion to a single justice for a recommendation. The single justice held a hearing by telephone in which Mr. Carr, Mr. Rivera, prosecutors from the Hampden district attorney's office, and the general counsel for the Trial Court were present. Having considered Mr. Rivera's motion and supporting documentation, the Commonwealth's opposition, Mr. Rivera's reply, the audio recording of the hearing, copies of e-mail messages supplied by Mr. Rivera at the single justice's request, and...