Commw. v. Milton, P-425

• Decision Date: 15 March 2000
• Docket Number: P-425
• Citation: 731 N.E.2d 101,49 Mass.App.Ct. 552
• Parties: (Mass.App.Ct. 2000) COMMONWEALTH, vs. JEFFREY T. MILTON. No.: 99- Argued:
• Court: Appeals Court of Massachusetts

Page 101

731 N.E.2d 101 (Mass.App.Ct. 2000)

COMMONWEALTH, vs. JEFFREY T. MILTON.

No.: 99-P-425

Massachusetts Court of Appeals, Middlesex

Argued: March 15, 2000.

Decided: July 6, 2000.

Maxine Sushelsky for the defendant.

Thomas D. Ralph, Assistant District Attorney, for the Commonwealth.

Present: Kass, Gillerman, & Jacobs, JJ.

GILLERMAN, J.

After an evidentiary hearing ordered by this court, a judge of the Superior Court, for the second time, denied the defendant's application for a new trial which was based on the claim that his trial counsel was ineffective, depriving him of his Federal and State constitutional rights. We reverse, and order a new trial.

The background events are these: On September 21, 1987, the defendant was arraigned on a juvenile complaint issued in the Malden District Court charging the defendant with assault and battery with a dangerous weapon. The episode occurred on August 31, 1987; the defendant was then sixteen years old. The complaint was dismissed at the Commonwealth's request, see G. L. c. 119, 61, on March 28, 1988. Thereafter, the Middlesex grand jury indicted the defendant on the same charge. The defendant was arraigned in the Superior Court on June 22, 1988, and Mr. John V. Young was assigned to represent him. On August 15, 1988, the defendant offered to change his plea. The guilty plea was accepted by the judge, and the defendant was committed to MCI, Cedar Junction, for a term of from four and one-half to ten years.

The defendant's motion to vacate his conviction and for a new trial was first filed pro se on December 6, 1988, and later refiled by his appellate counsel on October 6, 1994. In his affidavit filed in support of the new trial motion, the defendant asserted that as a result of the lack of investigation and preparation by Mr. Young, he had received ineffective assistance of counsel, and that he pleaded guilty on the advice of Mr. Young, who told him that if he did not plead guilty he would receive a sentence of from nine to ten years, rather that the four and one-half to ten years he could expect to receive by pleading guilty.

On March 28, 1996, we released an unpublished memorandum and order under Rule 1:28 responding to an order of a judge of the Superior Court denying, without a hearing: (1) the defendant's motion to vacate his conviction and to dismiss the indictment, and (2) his motion for a new trial and other postconviction relief. We affirmed the denial of the defendant's motion to vacate the conviction and dismiss the indictment. We reversed the order denying the motion for a new trial and remanded the matter to the Superior Court "for consideration of the defendant's motion for discovery and, after an opportunity for any reasonable discovery, for an evidentiary hearing on the motion for new trial, and the making of findings of fact pursuant to Rule 30(b)." This appeal is from the order entered August 11, 1998, again denying the motion for a new trial after the required evidentiary hearing.

In our memorandum ordering an evidentiary hearing on the new trial motion, we said there was a substantial issue regarding the claim of ineffective assistance by Mr. Young. We referred to "the transcript of the proceedings of the plea hearing, the defendant's psychiatric records detailing a long history of his inability to control his impulsive and violent behavior, the descriptions of the crime itself, and Mr. Young's refusal or failure to release pertinent records and provide information to present counsel "which might have shed light on an otherwise inexplicable decision to ignore a seemingly viable defense of lack of criminal responsibility. . . ."

The plea hearing. We summarize certain events in the record before us on the first appeal and which are part of the record on this appeal. At the sentencing phase of the hearing in the Superior Court following the defendant's change of plea, the Commonwealth represented that had the case gone to trial, it would have proven the following facts: On August 31, 1987, Charles Bishara (witness) saw the defendant screaming and kicking passing cars. The witness heard the defendant yelling at his girlfriend, "Do you want to see me stab someone?" The witness approached the defendant to tell him to "knock it off." The defendant attacked the witness and stabbed him in the leg, arm, back and shoulder. There were two other witnesses to the incident.

The wounded witness fled, chased by the defendant. He escaped, and was taken to a hospital where he stayed for two days.

The defendant's girlfriend (Smith) testified before the grand jury that the defendant grabbed a knife in Smith's pocket- book. According to Smith, the defendant "said that if I wanted to see him hurt somebody, he'd hurt the next person that walked by, and [then] he was in the car, in the street, kicking cars and screaming." The judge, referring to a report of the Malden police department, found that another witness saw the defendant "going berserk, yelling, screaming, kicking cars on Main Street and telling people to come out of their cars."

Continuing with the sentencing phase of the plea hearing: Mr. Young addressed the court. He appealed to the judge on the basis of the defendant's age, seventeen. He made no mention, by way of mitigation, of the defendant's prior emotional difficulties and hospitalizations, or the related reports, all of which we describe below. Secondly, Mr. Young conceded that the "offense does warrant some incarceration," but not "nine to ten," that being the anticipated recommendation of the Commonwealth. Having made those two statements Mr. Young ended his sentencing argument. His statements to the judge occupy merely seventeen lines of the transcript.

The prosecutor, justifying what the Commonwealth called its "stiff recommendation, nine to ten," told the judge that the defendant had a history of "very, very violent behavior . . . including an occasion when he stabbed a staff member in the arm; he slashed another juvenile in the throat with a pair of scissors. That happened to be an unprovoked attack. He was found, during a transfer hearing . . . to be potentially homicidal and not amenable to rehabilitation"¹ (emphasis added).

The judge responded to this description of the defendant's behavior:

THE COURT: "Well, he does have an assaultive background. I don't know what it is. I don't understand why but he's been in all kinds of difficulties as a youth; he's only a youth now. Going back to when we was thirteen and fourteen; fourteen especially when he started getting into these difficulties . . . . He had a troubled childhood, I see here. A lot of DYS commitments. He was committed there repeatedly. I don't know what's wrong with him. Has he ever been evaluated in any way to find out why he has these aggressive tendencies?" (Emphasis added).

MR. PASQUALE: "Your Honor, my record indicates that he has received extensive hospitalization treatment, McLean Hospital, Gay -- [blank], Charles River Hospital . . ."

THE COURT [to the defendant]: "I thought you said you had never been treated by a psychiatrist or psychologist?"²

MR. MILTON: "Not this year."

THE COURT: "All right. That's fair. What were they treating you for at McLean's?" (Emphasis added).

MR. MILTON: "Problems I had." (Emphasis added).

THE COURT: "Problems you had at home? You are going to have to stop that assaultive conduct. Do you know what is going to happen? Either you are going to get killed or you are going to do something to somebody and be in prison for the rest of your life. Is that what you want?" (Emphasis added).

MR. MILTON: "No."

THE COURT: "Mr. Milton, would you please rise . . . ."

Mr. Young made no attempt to answer the judge's concerns in ways that could benefit his client. We emphasize Mr. Young's silence in the face of the judge's statements, just quoted, that the defendant's difficulties go back to when he was thirteen, and his statements that he did not know what was "wrong" with the defendant. The judge wanted to know -- but was never told -- whether the defendant had ever been evaluated. In his memorandum and order the judge wrote, "[E]vidence of the defendant's psychiatric history was before the court and the defendant had several opportunities to inform the judge of his history had he so chosen." The silence of Mr. Young had its effect.

In note 3 to his memorandum and order following the plea hearing, the judge wrote:

"The defendant was born January 24, 1974.³. His juvenile record includes the following Department of Youth Services (DYS) delinquency dispositions: 1) June 3, 1985 [defendant then fourteen years old], attempt to commit crime, malicious destruction or property, attempt to commit crime and possession of burglarious tools, as to each DEL DYS CMTD; 2) September 9, 1985, Poss Class D Cont Sub, DEL CMTD DYS; 3) August 12, 1986, B&E NIGHT, DEL CMTD DYS; 4) May 5, 1987, three counts A&B/DW, DEL CMTD DYS."⁴

The evidentiary hearing. Mr. Young appeared in response to an out-of-State witness summons and testified in the Superior Court. He was asked, on direct examination by the defendant's counsel, if he knew "that Mr. Milton was a juvenile at the time the case began, [whether he] would . . . have read the transfer order. [See note 4, supra]." Mr. Young answered, "That would have been the proper procedure, yes." When offered to be shown the findings and order after the transfer hearing, Mr. Young replied that that would not help because, "I can't remember anything but some very, very basic and general facts of the case, and this is not going to help me refresh my recollection."

The transfer order regarding the charge against the defendant, which was admitted at the evidentiary hearing without objection, is not dated, but it refers to the transfer proceedings which took place on March 28, 1988. Attached to, and incorporated into this transfer order, was a previous extensive and detailed transfer order of a Juvenile Court judge...