Opinion
No. 15–P–1289.
07-05-2016
COMMONWEALTH v. Elmer BERNANDEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Elmer Bernandez, pleaded guilty to ten counts of armed robbery on January 25, 1996. After a colloquy with the defendant and his counsel, a Superior Court judge accepted his guilty pleas and imposed the agreed-upon sentencing recommendation of two consecutive terms of seven to ten years. On June 18, 2014, over eighteen years later, the defendant moved to withdraw his guilty pleas, claiming that he was incompetent at the time he pleaded guilty. Specifically, the defendant contends the judge should have, sua sponte, ordered a competency evaluation prior to accepting his guilty pleas, and his defense counsel was ineffective for not requesting an additional competency determination at that time. The same judge who had accepted the defendant's guilty pleas denied his motion to withdraw his guilty pleas without a hearing. We affirm.
The defendant was credited with 1,474 days served, and his eight remaining charges were placed on file.
The defendant's motion to withdraw guilty pleas is properly treated as a motion for a new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Balliro, 437 Mass. 163, 166 (2002).
Background. On August 26, 1992, the defendant was indicted on ten counts of armed robbery. Attorney Benjamin Entine began representing the defendant shortly after he was arraigned and continued to represent him until he pleaded guilty on January 25, 1996. After expressing concerns about the defendant's competence, Attorney Entine requested that the defendant undergo several mental health evaluations over the course of his representation. The defendant was evaluated multiple times and was committed to Bridgewater State Hospital (Bridgewater). The record indicates that the defendant spent the vast majority of his pretrial detention undergoing treatment at Bridgewater. While he was there, several evaluators determined that the defendant was incompetent, while others concluded that he was competent to stand trial. Among the differing views, more than one evaluator indicated that there was concern that the defendant was exaggerating his symptoms or malingering.
The following are the evaluators who provided reports concerning the defendant's competency: (1) January 19, 1993, Dr. Robert Joss, not competent; (2) February 24, 1993, Dr. Helene Presskreischer, competent; (3) December 13, 1993, Dr. Paul Spiers, not competent; (4) February 28, 1994, Dr. Martin Kelly competent; (5) November 25, 1994, Dr. Robert Joss not competent; (6) January 4, 1995, Dr. Helene Presskreischer, not competent; and (7) August 23, 1995, Dr. Andrew Moscowitz, competent.
On August 23, 1995, Dr. Andrew Moscowitz administered the defendant's final competency evaluation prior to his guilty pleas. In making his determination, Dr. Moscowitz considered the defendant's previous evaluations, two interviews he conducted with the defendant, his observation of a conversation between the defendant and Attorney Entine, and his weekly contact with the defendant. Dr. Moscowitz considered the prior differing opinions as to whether the defendant suffered from a mental illness, but he ultimately concluded that the defendant's symptoms were fabricated and that he was competent to stand trial. Dr. Moscowitz also noted that Attorney Entine believed the defendant's condition had improved. This competency determination occurred nearly eight months after another evaluator opined that the defendant was incompetent.
On January 25, 1996, the judge conducted a plea colloquy with the defendant prior to accepting his guilty pleas. From the outset, the judge recognized the defendant's history of mental illness and questioned him about it. The defendant stated that he was not having any issues with mental illness at that time. When asked if he understood what was happening in court that day, the defendant responded, “[a] hundred percent yes,” and indicated that he also understood the charges against him, the factual basis of those charges, and that he was facing a maximum prison sentence of life in jail. Furthermore, the defendant indicated that he understood the roles of the judge, prosecutor, and his defense attorney.
The defendant stated that Attorney Entine's role was to represent him and the prosecutor's role was “[t]o say I'm guilty.... That's why I got my lawyer to represent myself.”
The judge revisited the defendant's competency, and questioned him and his counsel about Dr. Moscowitz's “most recent” evaluation. Attorney Entine stated that he had reviewed the evaluation and did not contest that the defendant was competent. Further, the defendant indicated several times that he had discussed his guilty pleas with counsel and understood its implications, including deportation. Attorney Entine also stated that he had discussed the case with the defendant as well as the defendant's rights, defenses, and possible consequences of his guilty pleas, and was satisfied the defendant was competent. Finding that the defendant was “not presently suffering from a mental illness or condition, and that he has sufficient ability to consult with his attorney to a reasonable degree of rational understanding, and that he has a rational as well as factual understanding of the proceedings against him,” the judge accepted the defendant's guilty pleas.
Discussion. The standard for competence to plead guilty is the same as competence to stand trial. See Commonwealth v. Russin, 420 Mass. 309, 316–317 (1995). The key determination is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” of the proceeding against him. Commonwealth v. Robbins, 431 Mass. 442, 445 (2000), quoting from Russin, supra at 317. See Dusky v. United States, 362 U.S. 402, 402 (1960). Past history of mental illness is not dispositive as to whether the defendant is competent at the time of a guilty plea. See Robbins, supra at 448. However, “[t]he judge must hold a competency hearing if there exists ‘a substantial question of possible doubt’ as to whether the defendant is competent” to plead guilty. Id. at 447, quoting from Commonwealth v. Hill, 375 Mass. 50, 54 (1978).
Where, as here, the motion judge is also the plea judge, “[w]e grant substantial deference” to that judge's determinations. Commonwealth v. Williams, 71 Mass.App.Ct. 348, 353–354 (2008). See Commonwealth v. Lucien, 440 Mass. 658, 670 (2004) (where judge acting on motion was also trial judge, reversal for abuse of discretion is particularly rare). The defendant claims the past determinations of his incompetency were sufficient to require the judge to order a further competency evaluation. We disagree.
The defendant's final evaluator prior to pleading guilty determined that he was competent to stand trial. This determination was supported by the defendant's ability to respond appropriately and coherently to the judge's thorough questions probing his mental health, competency, understanding of the charges against him, and the consequences of his pleas. Furthermore, Attorney Entine, who represented the defendant from the time of his arraignment four years prior, was clearly attentive to issues concerning the defendant's competency, and stated during the colloquy that the defendant was capable of submitting his pleas knowingly, willingly, and voluntarily.
The defendant fails to state a persuasive reason to explain why the plea judge should have rejected the defendant's most recent evaluation in favor of evaluations that were at least eight months older.
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Given the defendant's responsiveness to the judge and demonstrated understanding of the proceedings, any prior determinations of incompetency, which all predated the determination that he was competent by at least eight months, were insufficient to call into question the defendant's competency on the day he pleaded guilty. See Robbins, supra at 445 (competency depends on defendant's “present ability to consult with his lawyer” and past history of mental illness is not dispositive). The motion judge denied the defendant's motion to withdraw his guilty pleas after a careful review of the defendant's mental health reports, the docket, the plea colloquy transcript, and her experience as the judge who accepted his guilty pleas. See Commonwealth v. Garvin, 456 Mass. 778, 799–800 (2010). Based on that review, the motion judge did not abuse her discretion in denying the defendant's motion to withdraw his guilty pleas without a hearing where she was the judge who accepted the defendant's pleas, and where he failed to produce any additional evidence to call his competency into question on the date he tendered his pleas. See Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001) (no further hearing required “if no substantial issue is raised by the motion or affidavits”); Commonwealth v. Rodriguez, 52 Mass.App.Ct. 572, 581 (2001) (defendant's burden to show that circumstances of his plea demonstrate need for withdrawal).
Furthermore, the defendant fails to provide any explanation for the eighteen-year delay between when he pleaded guilty and his current motion to withdraw those pleas. We are mindful that the community has an interest in finality, “which insures the integrity and predictability of our procedures and is of especial weight in regard to convictions on guilty pleas.” Commonwealth v. Pingaro, 44 Mass.App.Ct. 41, 55 (1997). See Commonwealth v. Amirault, 424 Mass. 618, 637 (1997) (discussing negative impact of lengthy passage of time, which causes witnesses to disappear and memories to fade). Accordingly, the motion judge did not err in denying the defendant's motion to withdraw his eighteen year old guilty pleas.
The record similarly fails to support the defendant's claim of ineffective assistance of counsel. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Attorney Entine was attentive to issues bearing on the defendant's competence throughout his extended representation of the defendant. Indeed, he moved several times to have the defendant evaluated because he had concerns about the defendant's competency. Furthermore, the transcript of the plea hearing indicates that the defendant's lawyer was actively involved in the defendant's pleas, he reviewed the most recent competency evaluation, and he was able to adequately communicate with the defendant about his guilty pleas.
Order denying motion for new trial affirmed.