Commonwealth v. Wheeler

• Decision Date: 25 September 2001
• Docket Number: No. 99-P-1440.,99-P-1440.
• Citation: 756 NE 2d 1,52 Mass. App. Ct. 631
• Parties: COMMONWEALTH v. SCOTT WHEELER
• Court: Appeals Court of Massachusetts

52 Mass. App. Ct. 631

756 NE 2d 1

COMMONWEALTH v. SCOTT WHEELER

No. 99-P-1440.

Court of Appeals of Massachusetts, Norfolk.

June 5, 2001.

September 25, 2001.

Present: DREBEN, GRASSO, & BERRY, JJ.

Timothy M. Burke for the defendant.

James A. Reidy, Assistant District Attorney, for the Commonwealth.

GRASSO, J.

More than twenty-five years ago, after a jury-waived trial, Scott Wheeler,¹ then fifteen years old, was adjudicated a delinquent child by reason of statutory rape (G. L. c. 265, § 23). In November, 1998, he moved for a new trial. The impetus for Wheeler's motion was notification that he was being terminated from his position as a police officer in the town of Franklin, occasioned by a nonrenewal of his license to carry a handgun. The nonrenewal stemmed, in turn, from a recent amendment to G. L. c. 140, § 131.² From the denial of this motion, he appeals. We affirm.

Termination of Wheeler's employment in consequence of the broad sweep of G. L. c. 140, § 131, would appear to work a harsh result for a youthful transgression that he justifiably could have considered a closed chapter.³ However, the motion judge did not err in concluding that Wheeler had failed to demonstrate that justice may not have been done when he was adjudicated a delinquent child in 1973. The issue raised is one of criminal law, not of Wheeler's eligibility for a license to carry a firearm or of his job entitlement.⁴ Neither trial judges nor appellate justices are, like Merlin, able to do away with harsh and unforeseen collateral or contingent consequences of criminal proceedings with a wave of the judicial wand.

Wheeler's new trial motion contended that he was deprived of the effective assistance of counsel due to trial counsel's (1) conflict of interest; and (2) inadequate pretrial preparation and postconviction representation. Accordingly, he carried the burden of demonstrating that his counsel's performance fell measurably below that of reasonably competent counsel, thereby depriving him of an otherwise available substantial ground of defense, Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and, consequently, that justice may not have been done. See Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979).

1. Factual support for the motion. To support his motion, Wheeler filed only his own affidavit.⁵ From such affidavits and the nonevidentiary hearing held by the judge, the following facts emerge.⁶

On January 19, 1973, Wheeler, then age fifteen, was arraigned on a charge of statutory rape of a fifteen-year-old girl alleged to have occurred on December 31, 1972. After only one intervening court appearance, on March 9, 1973, he was adjudicated delinquent.⁷ He received a one-year suspended sentence of commitment to the Department of Youth Services. He waived his right of appeal to a jury and, following successful completion of probation, he was discharged from probation on March 8, 1974. He had no other experiences as a criminal defendant and has had none since.

In 1981, Wheeler became a police officer in Franklin, where he served with apparent success. In October, 1998, after seventeen years on the police force, he received notice that his permit to carry a handgun would not be renewed and, consequently, he would be terminated from employment as a Franklin police officer.

The trial judge has since retired. Wheeler's mother and father, who arranged for counsel, are now deceased, as is trial counsel, attorney Patrick Murphy. Wheeler asserts that, besides representing him, attorney Murphy simultaneously represented three unnamed juvenile codefendants, and an unnamed eighteen year old adult codefendant, all charged with the same statutory rape. He also asserts that he never met or discussed the case or any available defenses with attorney Murphy prior to his trial, and, to the best of his knowledge, neither did his parents. He contends that he was never advised of the perils of joint representation of codefendants, either by his attorney or by the judge.

In essence, Wheeler claims that a genuine conflict of interest existed in the simultaneous representation of himself and the other codefendants, juvenile and adult, by virtue of the divided loyalty of attorney Murphy, who was motivated by an asserted desire to prevent Wheeler and the other juveniles from disclosing that the eighteen year old adult had engaged in consensual intercourse with the minor on several other occasions. See Commonwealth v. Goldman, 395 Mass. 495, 503, cert. denied, 474 U.S. 906 (1985) (actual conflict of interest may be proved through a showing of an impairment of counsel's independent professional judgment where regard for the attorney's duty to one client would lead to disregard of his duty to the other); Commonwealth v. Griffin, 404 Mass. 372, 376 (1989) (actual conflict where there is joint representation and an attorney cannot use his best efforts to exonerate one defendant for fear of implicating another).

Alternatively, Wheeler posits that the joint representation created a potential conflict of interest that materialized into actual prejudice when the codefendants, himself included, failed to testify at trial. See Commonwealth v. Davis, 376 Mass. 777, 781, 784 (1978) (a potential conflict of interest arises whenever a single attorney represents more than one defendant in a criminal action). Had he testified, he maintains, a significant difference in his level of culpability would have been presented to the judge both at trial and on disposition. Although he admits physical contact with the complainant, Wheeler denies having had sexual intercourse with her.

2. Denial of the motion. On appeal, we examine a decision to deny a motion for a new trial to determine whether there has been an abuse of discretion or other error of law. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986); Commonwealth v. Stote, 433 Mass. 19, 22 (2000). "The decision to deny a motion for a new trial lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or the trial was infected with prejudicial constitutional error." Commonwealth v. Medina, 430 Mass. 800, 802 (2000). We conclude that neither ground for reversal is present here. We begin our analysis with the familiar precept that a judge may grant a motion for a new trial only "if it appears that justice may not have been done." Mass.R.Crim.P. 30(b).⁸Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). Judges are to apply the standard set forth in rule 30(b) rigorously and should only grant such a motion if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth. See Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992), and cases cited therein. In a new trial motion asserting ineffective assistance of counsel, whether justice may not have been done equates with whether counsel was constitutionally ineffective. If counsel's ineffectiveness deprived the defendant of an otherwise available substantial ground of defense, see Commonwealth v. Saferian, 366 Mass. at 96, then there has been prejudicial constitutional error, see Commonwealth v. Medina, 430 Mass. at 802, and justice has not been done.⁹

(a) The presumption of regularity and the principle of finality. Relying on the rule's statement that a judge may grant a new trial motion "at any time if it appears that justice may not have been done," Wheeler argues that the twenty-five year hiatus between trial and the filing of his new trial motion does not invalidate such motion. This is a correct statement of the law. See Commonwealth v. Francis, 411 Mass. 579, 585-586 (1992) (lapse of time does not, in and of itself, constitute waiver). Implicit in a judge being able to grant a motion "at any time" must be a defendant's ability to file such a motion at any time.

However, the fact that the mere passage of time does not invalidate a new trial motion does not mean that the passage of time is irrelevant to its consideration. "The desirability of finality in the adjudication of cases and the Commonwealth's interest in the fair and efficient administration of justice are factors to be considered along with the ever-present concern that justice not miscarry for the defendant." Commonwealth v. Curtis, 417 Mass. 619, 623 (1994). The presumption of regularity and the principle of finality addressed in Commonwealth v. Lopez, 426 Mass. 657, 661-665 (1998), Commonwealth v. Grant, 426 Mass 667, 671, 673-674 (1998), and Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 49-50 (1997), have as much applicability in a proceeding resolved by trial as one resolved by plea:

"When the defendant leaves his guilty pleas unchallenged for a lengthy period of time, so that the contemporaneous record of the plea is lost ... and means of reconstruction are made impractical or impossible due to the death or retirement of judges and court reporters, the unavailability of witnesses, the inherent weaknesses and failures of recollection, and other factors commonly associated with the passage of time ... the absence of a record, and the inability effectively to reconstruct it, may be directly attributed to the defendant's delay and may be said to be the defendant's fault."

Commonwealth v. Lopez, 426 Mass. at 661.

Rule 30(b) motions are collateral attacks on final decisions. See id. at 662. The defendant has the burden of producing a credible reason to reverse the final decision, arrived at after trial or plea, that outweighs the risk of prejudice to the Commonwealth. See id. at 661-665. In those instances where the defendant's attack on his conviction or his plea by a rule 30(b) motion proceeds, necessarily, on a basis extrinsic to an unavailable contemporaneous record, a judge is not required to accept the defendant's self-serving affidavit as sufficient to satisfy his burden. When, through no fault of the Commonwealth, the passage of time has destroyed or eroded the record of the proceeding, or other indicia...