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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. DiPietro, 35 Mass.App.Ct.
638 (1993)
No. 92‑P‑1106.
Appeals Court of Massachusetts, Middlesex.
Argued
Decided
Review Denied
Harry D. Quick, Worcester, for defendant.
Marian T. Ryan, Asst. Dist. Atty., for Com.
Before DREBEN, FINE and GILLERMAN, JJ.
FINE, Justice.
Following
a thorough colloquy with the defendant on
1. Failure to file motion to suppress. The defendant contends, first, that his
guilty plea was not voluntary because he believed at the time that a motion to
suppress the evidence seized at his residence had been filed and denied (FN3)
but that counsel had not in fact filed such a motion, and, had the defendant
known the true facts, he would not have pleaded guilty. He maintains that the search warrant was
invalid and that counsel's failure to file a motion to suppress before the plea
hearing deprived him of the effective assistance of counsel.
[1] [2]
The defendant acknowledged during the plea colloquy that by pleading guilty he
was waiving his right to challenge the search and also that he was satisfied
with the representation and advice his attorney had provided. Nevertheless, the defendant's contention that
his plea was not voluntary was not waived.
See Commonwealth v. Cepulonis, 9 Mass.App.Ct.
302, 304, 400 N.E.2d 1299 (1980); United States v. Giardino,
797 F.2d 30, 31[35 Mass.App.Ct. 640] (1st Cir.1986). It is undisputed that no motion to suppress
had been filed before the defendant tendered his plea. The affidavits filed by the defendant and by
his counsel are conflicting as to whether counsel told the defendant that a
motion to suppress had been filed. If
the defendant could demonstrate, at an evidentiary hearing, both that he
pleaded guilty because his attorney had told him that a motion to suppress had
been filed and denied and that counsel was ineffective in failing to file such
a motion, he would be entitled to have the plea vacated. To show ineffectiveness in failing to
challenge a search, however, ordinarily a defendant would have to demonstrate a
likelihood that he would have prevailed on a motion to suppress the results of
the search. See Commonwealth v. Conceicao, 388 Mass. 255, 264, 446 N.E.2d 383 (1983);
Commonwealth v. Pena, 31 Mass.App.Ct. 201,
205, 575 N.E.2d 774 (1991). Compare Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985). This court held in Commonwealth v. Chetwynde, 31 Mass.App.Ct. 8,
14, 574 N.E.2d 407 (1991), that where a defendant pleaded guilty after his
attorney falsely represented to him that a motion to suppress a confession had
been denied, the issue on the defendant's later motion to withdraw his plea was
not whether he would likely have prevailed on the motion to suppress but
"whether the defendant was so misled by counsel's alleged false
representations that he prematurely waived his right to a jury
trial." In that case, however, the
motion to suppress would have raised factual issues, and there was at least
some uncertainty as to its outcome. The
reasoning in Chetwynde
would not apply here where the alleged misrepresentation related to the filing
and denial of a suppression motion based on an allegedly invalid search
warrant, the outcome of which depended strictly on the law. The defendant's possible belief that a motion
to suppress had been denied was irrelevant to his decision to plead guilty if
such a motion would have been denied as matter of law. We therefore address the issue of the
validity of the search warrant.
[3] [4]
[5] Where the affidavit accompanying an application for a search warrant relies
on information supplied by a confidential informant to establish probable
cause, art. 14 of the Declaration or Rights of the Massachusetts Constitution
requires that the two‑part test established by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct.
1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637[35 Mass.App.Ct. 641] (1969), be satisfied.
(FN4) This means that the information
provided the magistrate must meet both the basis of knowledge test and the
veracity test. If either (or both) of
the tests is not satisfied, police corroboration of the information provided
can support a finding of probable cause.
[6]
Although the issue in this case is close, we think the veracity test was
met. Neither the general averment in the
affidavit of James J. Burleigh, a nineteen‑year veteran F.B.I. agent,
that the informant had been reliable in the past, nor the assertion that
information he provided had led to arrests and to court orders for
surveillance, is, by itself, sufficient.
See Commonwealth v. Rojas, 403
Mass. 483, 531 N.E.2d 255 (1988). There
are additional statements, however, of a more substantial character. There are assertions that, within the
previous ten [35 Mass.App.Ct.
642] years, the informant
"provided information to the Boston office of the FBI which resulted in
the apprehension of a fugitive in connection with a crime of violence,"
and that he "provided information to the FBI which resulted in the seizure
of counterfeit bonds and the arrest of the seller of the bonds." And, further, there is a statement that,
within the previous five years, he "provided information to the Drug
Enforcement Administration which led to the arrest of a DEA fugitive."
[7] [8]
[9] But for the possible staleness problem, the informant's trustworthiness is
adequately demonstrated by the information he provided to authorities
concerning the whereabouts of fugitives and the location of contraband.
Commonwealth v. Perez‑Baez, 410 Mass. 43, 45 n. 2, 46, 570
N.E.2d 1026 (1991). Commonwealth v. Lopez, 31 Mass.App.Ct. 547, 549, 581 N.E.2d 485 (1991). In our view, the references in the affidavit
to the lengthy time period over which the information was provided are not
fatal to a determination of the informant's veracity. Staleness is a problem when observations forming
an informant's basis of knowledge can not be pinned down to a date reasonably
close to the date of the affidavit.
Passage of time, however, does not usually erode one's truth‑telling
propensities. In several cases,
references to information provided "in the past" have been regarded
as sufficient. See Commonwealth v. Perez‑Baez, supra; Commonwealth v. Lopez, supra. Thus, we do not think that a staleness
problem prevented a finding that the informant was reliable.
[10] As to
the basis of knowledge test, in paragraph three of the affidavit, it is
recited: "Yesterday, on May 9,
1989, [the informant] informed me that [he] had observed numerous kilograms of
cocaine at the [defendant's residence]."
An informant's observation of contraband in the place to be searched
satisfies the basis of knowledge test.
See Commonwealth v. Amral, 407 Mass. 511, 514‑515, 554 N.E.2d 1189
(1990). The affidavit does not directly
disclose when the observations took place.
However, it recites, in the two sentences following the one quoted
above: "[the informant] has been
told that the cocaine is awaiting sale to customers[, and the informant] has
received additional information indicating that within the last 48 hours [the
defendant] has made sales of kilograms of cocaine from the supply at [the
defendant's residence]." The three sentences, read together, indicate
that the informant's [35 Mass.App.Ct. 643]
observations of the cocaine were made on or shortly before May 9.
[11] As
there was little chance that the defendant would have prevailed in the trial
court or, ultimately, on appeal, on a motion to suppress, he cannot demonstrate
that he was prejudiced by counsel's failure to file such a motion. Hill
v. Lockhart, 474 U.S. at 58‑59, 106 S.Ct.
at 370‑371. United States v. Debango,
780 F.2d 81, 85 (D.C.Cir.1986). Thus,
even if the defendant had proved after an evidentiary hearing that his attorney
had told him, falsely, that he had filed such a motion, he could not show that
counsel's failure had any material effect on his decision to plead guilty.
[12] 2. Incorrect advice as to effects of
amendment. There is no dispute that
defense counsel incorrectly informed the defendant that, if he were to plead
guilty or be convicted after January 15, 1990, the effective date of Chapter
415 of the Acts of 1989, he would not be eligible to receive good time
credits. There is no merit, however, to
the defendant's claim that his pleas were involuntary because, when he decided
to change his plea to guilty on December 19, 1989, he relied on this incorrect
advice. A trial had been scheduled for
that date, and there is no indication that the plea judge would have granted a
continuance. The defendant must have
known, therefore, that he would go to trial on December 19, 1989, and his only
choice on that date was between pleading guilty and standing trial. The matter would have been concluded, in
either event, before the effective date of the amendment. It is not plausible, therefore, to consider
that his decision to plead guilty was affected by his misunderstanding of the
new law. (FN5)
[35 Mass.App.Ct.
644] [13] 3. Failure to file pretrial motions and lack of preparedness for trial. In a brief "catch‑all"
argument on appeal, the defendant claims broadly that counsel failed to file
appropriate pretrial motions and to investigate properly the entire case. The motion judge, apparently not deeming the
contentions worthy of mention, did not address them. The defendant has not made an adequate
showing as to how any inaction on counsel's part deprived him of an
"otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. 89,
96, 315 N.E.2d 878 (1974). (FN6)
At the
plea colloquy, the defendant represented that plea counsel had acted in his
best interests and fairly represented him.
Moreover, in his affidavit, counsel recited that he met with the
defendant in September and October (of 1989), and "discussed in detail the
evidence and charges in the case against him." The motion judge was entitled to credit that
affidavit. See Commonwealth v. Thomas, 399 Mass. 165, 167, 503 N.E.2d 456
(1987). The defendant indicated during
the colloquy that he was pleading guilty because he was guilty. The plea judge made a "conspicuous
effort to make sure that the defendant understood what was at stake and was
acting voluntarily." Commonwealth v. Jiminez,
27 Mass.App.Ct. 1165, 1166, 539 N.E.2d 1057 (1989).
In sum,
the defendant failed to show that his motion for a new trial should have been
allowed or that there was a material dispute of fact as to any substantial issue requiring an evidentiary
hearing. See Mass.R.Crim.P.
30(c)(3), 378 Mass. 901 (1979). Contrast Commonwealth v. Licata, 412 Mass. 654,
661, 591 N.E.2d 672 (1992).
Order denying motion for new trial affirmed.
FN1.
Sentencing, which took place on March 2, 1990, was delayed because the
defendant had offered to cooperate with the authorities. The negotiations were apparently not
fruitful. On the trafficking indictment,
the judge sentenced the defendant to a term of eighteen to twenty years at
M.C.I., Cedar Junction, twelve years of which was to be served. The judge stated that it was his intention
that the defendant be parole eligible after about seven years. The other indictment was placed on file with
the defendant's consent and is not before the court on appeal.
Commonwealth v. Frey, 390 Mass. 245, 246, 454 N.E.2d 478 (1983).
FN2. Accompanying the new trial motion was a
memorandum of law and the defendant's affidavit. In his affidavit, the defendant acknowledged
that present appellate counsel assisted in its preparation.
FN3. On February 26, 1990, after the guilty
plea was accepted, defense counsel filed, along with a motion for a new trial,
a motion to suppress based upon a one‑day discrepancy in the date of the
issuance of the search warrant. The
Federal magistrate filed an affidavit explaining that he incorrectly dated one
of the duplicate original search warrants.
The motion to suppress was denied.
The defendant did not appeal from the denial of this motion. This appeal concerns the denial of his second
motion for a new trial.
FN4. In denying the defendant's motion for a
new trial, the judge reasoned that, because the search warrant was issued by a
Federal magistrate, and because the investigation was solely a Federal one
until the execution of the warrant, it should be tested according to Federal
standards rather than the stricter State standards. See
Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985). The defendant contends that it would have
been error to test the warrant according to the Federal standards.
The issue,
whether Federal or State standards were applicable, was raised by the plea
judge on his own motion before the plea was accepted, and he invited memoranda
on the issue from counsel. The
Commonwealth provided a memorandum.
According to his affidavit, defense counsel believed that there was no
basis for challenging the search. Thus,
he provided neither a motion to suppress nor a memorandum of law. The plea judge indicated that he was inclined
to apply Federal standards. Even if that
judge would have entertained and denied a motion to suppress, however, the
defendant would have had the right, after standing trial, to appeal from the
judge's ruling on the motion to suppress.
The
likely resolution of the Federal‑State issue is not clear. It is disputed whether the entire
investigation was Federal, and the Supreme Judicial Court has never decided
whether the stricter State standard would apply to a Federal search warrant in
a State court prosecution based upon a predominantly Federal
investigation. Compare Commonwealth v. Jarabek,
384 Mass. 293, 424 N.E.2d 491 (1981).
The resolution of the conflict would depend, we suppose, upon whether
the court viewed the principal interest underlying the exclusionary rule as the
deterrence of illegal police conduct, see
Commonwealth v. Gagnon, 16 Mass.App.Ct. 110, 122,
449 N.E.2d 686 (1983), in which event application of a Federal standard would
suffice, or as "judicial integrity" and the protection of privacy,
see Selectmen of Framingham v. Municipal
Ct. of Boston, 373 Mass. 783, 787, 369 N.E.2d 1145 (1977), in which event
application of the stricter rules would be called for. We need not resolve the issue in this case
because, in our view, the search warrant satisfies the stricter State standard.
FN5.
The defendant also made statements in his affidavit to the effect that his
attorney had told him before his plea that he would lose his good time credits
if he went to trial no matter when the trial took place. In his memorandum of decision, the motion
judge did not discuss those statements in the defendant's affidavit. It is unlikely that counsel would have given
the defendant such advice, and the motion judge was entitled to regard the
defendant's statements as lacking in credibility. See
Commonwealth v. Thomas, 399 Mass. 165, 167, 503 N.E.2d 456 (1987). In any event, we do not consider those
statements because the defendant does not rely on them on appeal. To the contrary, he states in his brief that
he "believed that if his sentence would have been imposed after the
January 15, 1990, deadline, the statute ... would ... lengthen the term of his
sentence."
FN6.
At the plea hearing, the assistant district attorney recited the factual basis
for the pleas. The facts, admitted by
the defendant, were straightforward. The
defendant's home was searched on May 10, 1989.
The defendant was at home alone at the time. One hundred ninety‑four and seven‑tenths
grams of seventy‑four percent pure cocaine were found in a plastic bag in
a kitchen cabinet, and ninety‑four grams of marihuana were discovered in
another plastic bag in a closet.
Paraphernalia common to the drug trade were also discovered, along with
papers and records bearing the defendant's name.