Commonwealth v. Walker, SJC-09225 (MA 4/13/2005)

• Decision Date: 13 April 2005
• Docket Number: SJC-09225
• Citation: 443 Mass. 867
• Parties: COMMONWEALTH vs . SEAN WALKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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COMMONWEALTH vs. SEAN WALKER.

SJC-09225

Supreme Court of Massachusetts.

Suffolk.

February 10, 2005.

April 13, 2005.

Practice, Criminal, New trial, Plea, Assistance of counsel, Waiver. Constitutional Law, Assistance of counsel, Search and seizure. Search and Seizure, Threshold police inquiry.

Indictments found and returned in the Superior Court Department on June 11, 1991.

A motion for a new trial, filed on May 3, 2002, was considered by Charles T. Spurlock, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Estera Halpern for the defendant.

Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

GREANEY. J.

The defendant seeks to withdraw guilty pleas entered January 7, 1992, on indictments charging unlawful possession of a firearm, second offense, and unlawful possession of ammunition. The charges stemmed from an investigatory stop of the defendant initiated by officers of the Metropolitan District Commission (MDC) who had received a report of an armed robbery that had just been committed in the vicinity by "two black guys." While conducting a protective pat-down search of the defendant, the officers recovered a loaded .32 caliber handgun.¹ The defendant's motion to suppress the handgun and ammunition was denied by a judge in the Superior Court. The defendant subsequently entered guilty pleas on both indictments and was sentenced to a term of five years at the Massachusetts Correctional Institution at Concord (MCI, Concord) on the conviction of unlawful possession of a firearm.²

In 1997, after serving the entire sentence, the defendant filed a pro se motion to withdraw his guilty pleas and be granted a new trial, pursuant to Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979). In his motion and supporting affidavit, the defendant asserted that his plea was involuntary because his plea counsel had pressured him into pleading guilty and had advised him that to do so would result in his serving "less time." The defendant's motion was denied by the same judge who had accepted his guilty pleas five years earlier. The defendant did not appeal from the order of denial.

In 2002, the defendant (now represented by counsel) filed a subsequent motion pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), asserting that his pleas were involuntary because (1) they were based on incompetent advice from his plea counsel that to appeal from the denial of his suppression motion would be fruitless and (2) neither the judge nor plea counsel had advised him of the mandatory minimum sentence on the conviction of unlawful possession of a firearm, second offense. The defendant, his appellate counsel, and his plea counsel submitted affidavits in support of the new trial motion. The motion was denied without a hearing by a different judge (the judge who accepted the defendant's guilty pleas and denied his original pro se motion for a new trial had since been appointed to the Appeals Court). The denial was affirmed by the Appeals Court in an unpublished decision pursuant to rule 1:28. Commonwealth v. Walker, 59 Mass. App. Ct. 1112 (2003). We granted the defendant's application for further appellate review and, after oral argument, remanded the case to the Superior Court for admission in evidence of a letter, referred to in supporting affidavits, sent to the defendant from his plea counsel and advising the defendant that there was no persuasive basis on which to appeal from the denial of his suppression motion. After receiving that letter in evidence, the judge again denied the defendant's motion without a hearing. We have considered the defendant's appeal from the order of denial in light of the letter from his plea counsel (now part of the record), affidavits submitted by the defendant, by his plea counsel, and by his appellate counsel, original and supplemental briefs submitted by the parties, and both oral arguments. We now affirm the order of denial.

We summarize the findings of fact made by the judge who denied the defendant's motion to suppress. At approximately 11:13 P.M. on June 4, 1991, a woman made a telephone call to the recorded dispatch line of the Boston police department to report a robbery that had just taken place at the corner of Mozart and Chestnut Streets in the Jamaica Plain section of Boston. The woman, who gave her name as "Jean," stated that the robbery victim was a friend of her husband. She described the assailants as "two black guys" and indicated that one of them had a gun. The dispatch officer transmitted this information to police officers on duty in the vicinity. Within minutes, two MDC officers who had received the report observed a black male "furiously peddling" a "mountain bike" approximately one block from where the robbery had occurred. The officers were suspicious and, pulling their marked police cruiser next to the man on the bicycle (the defendant), requested that he stop. The defendant did not respond but looked straight ahead and kept peddling. The officers pulled their cruiser in front of the defendant, and one officer got out and stopped the defendant. The defendant stated, "I didn't do it — leave me alone." The officer grabbed the defendant's arm and said that he just wanted to ask him a few questions. Fearful for his safety because the reported robbery involved a gun, the officer quickly patted down the defendant and discovered a loaded .32 caliber handgun on his person. Without being asked any questions, the defendant blurted out, "some dude gave me that gun." The officer gave the defendant his Miranda rights and then asked, "What dude gave you the gun?" The defendant responded that "some dude" to whom he owed money gave him the gun. The defendant was arrested for possession of the handgun and ammunition.

Based on the facts set forth above, the judge concluded that the officers were justified in making a threshold inquiry of the defendant. The judge reasoned that the information known to the police officers "via the police radio, the time of night, and the observed actions of the police collectively" provided them with reasonable suspicion that justified their investigatory stop of the defendant. In addition, the judge ruled that the protective pat-down of the defendant at the outset of the stop was "perfectly reasonable" based on information that the robbery precipitating the stop was committed with a handgun. The judge identified two decisions in which this court had concluded there was no reasonable suspicion justifying a police stop. The judge first distinguished Commonwealth v. Antobenedetto, 366 Mass. 51 (1974), on the basis that the facts of that case involved a warrantless stop and search of an automobile based on information in a police broadcast that was unsupported by probable cause. See id. at 56 & n.2. The judge then discussed Commonwealth v. Thibeau, 384 Mass. 762 (1981), in which a defendant riding a bicycle made a sudden turn and pedalled down a side street after seeing a marked police cruiser. The judge reasoned that the police stop of the bicyclist in the Thibeau case was unlawful because the police had no basis whatsoever to conduct an investigatory stop of the bicyclist. The judge stated that the stop of the defendant "was not based on mere suspicion, but reasonably reliable information provided to the police." The judge further concluded that the defendant's initial statement to the officers was voluntarily made without interrogation and that his remaining statements were made after he was properly warned of his Miranda rights. Accordingly, the judge denied the defendant's motion to suppress the handgun, the ammunition, and his statements to police.

The following week, the defendant's plea counsel advised him in a letter that there was no basis on which to appeal from the judge's ruling. The defendant's plea counsel informed him that the judge had "carefully crafted the facts so his legal finding is indisputable." He stated that: "No appellate court will change his findings of fact. And, based on his findings of fact, his legal conclusion is correct. . . . We have nothing to try in this case. They have you absolutely cold." Two months later, the defendant pleaded guilty to the charges. No record of the pleas now exist.

A judge may grant a motion for a new trial only "if it appears that justice may not have been done." Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992), quoting Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982), and cases cited. When, as here, the motion includes a postsentence request to withdraw a guilty plea and the motion is filed after plea records have been destroyed, a new trial motion should be granted only "if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth." Commonwealth v. Fanelli, supra, quoting Commonwealth v. DeMarco, supra at 486. The defendant argues that the judge's ruling was clearly erroneous and that his plea counsel's failure to appreciate the merits of a possible appeal constituted ineffective assistance of counsel. The Commonwealth asserts, correctly, that, by failing to raise this issue in his first pro se rule 30 motion, the defendant has waived it. Waiver in this case also may be based on the defendant's failure to appeal from the denial of his first motion for a new trial. See Mains v. Commonwealth, 433 Mass. 30, 34 (2000). That the defendant proceeded pro se does not affect his obligation to abide by procedural rules. See id. at 36. We therefore review any error to determine whether it may have created a substantial risk of a miscarriage of justice. See Commonwealth v. Russell, 439 Mass. 340, 345 (2003).

A defendant whose plea counsel gives plainly incorrect advice, and who relies on that advice in tendering a guilty plea, has received ineffective assistance of...