MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2015, the defendant pleaded guilty to malicious destruction of property over $250, violation of a G. L. c. 209A abuse prevention order (209A order), and trespass. In 2019, the defendant, claiming ineffective assistance of plea counsel, filed a motion to withdraw his guilty plea, which was denied after two nonevidentiary hearings and an evidentiary hearing. On appeal, the defendant argues that the motion judge violated his constitutional rights by precluding him from compelling the victims testimony at the evidentiary hearing on his motion to withdraw his guilty plea. We need not reach the question whether the defendant was improperly precluded from compelling the victim to testify, because we conclude that, regardless of how the victim might have testified, the judge did not abuse her discretion in denying the motion. We therefore affirm.
Discussion. “A postsentence motion to withdraw a plea is treated as a motion for a new trial.” Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000). We review a judges decision denying such a motion “only to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
To show ineffective assistance of counsel, a defendant must establish that counsels performance fell “measurably below that which might be expected from an ordinary fallible lawyer” and “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was ‘manifestly unreasonable’ when made.” Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978). “Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant.” Commonwealth v. Montez, 450 Mass. 736, 755 (2008).
The defendant claims that plea counsel performed deficiently in failing to pursue a defense based on the defendants intoxication. Specifically, the defendant argues that he was too intoxicated to have knowledge of the 209A order when it was served on him. See Commonwealth v. Delaney, 425 Mass. 587, 593 (1997), cert. denied, 522 U.S. 1058 (1998) (conviction of violating 209A order requires proof that defendant either was served with order or had actual knowledge of its contents).
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At the hearings on his motion for a new trial, to bolster his argument that plea counsel should have pursued this potential defense, the defendant sought to have the victim testify to his level of intoxication at the time he was served with the order. The motion judge declined to permit the defendant to call the victim as a witness.
Here, the defendants attorney had not spoken with the victim and thus was unable to make an offer of proof about the substance of her testimony. But even assuming that the victims testimony at the hearing would have been favorable to the defendant, he could not have met his burden of showing ineffective assistance without at least attempting to obtain an affidavit or testimony from plea counsel. “When weighing the adequacy of the materials submitted in support of a motion for a new trial, the judge may take into account the suspicious failure to provide pertinent information from an expected and available source.” Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004).
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Courts regularly reject ineffective assistance claims where they are unaccompanied by an affidavit from counsel to explain counsels thought process regarding the assertedly deficient performance. See, e.g., Commonwealth v. Lynch, 439 Mass. 532, 539 n.2, cert. denied, 540 U.S. 1059 (2003), and cases cited. “Without that affidavit, we have only the defendants self-serving statements regarding [plea] counsels strategy.” Commonwealth v. Alvarez, 62 Mass. App. Ct. 866, 870 (2005). See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) (ineffective assistance claim unsupported by counsels explanation for his performance “is the weakest form of such a challenge ․ and suggestive of strategy contrived by a defendant viewing the case with hindsight”).
Here, based on what was before the motion judge, she could not determine whether counsel was unaware of any possible defense based on the defendants intoxication or, instead, was aware of the issue yet made a strategic decision not to press it. And if plea counsels decision not to pursue the defense was strategic, the judge could not determine on the record before her, without any evidence from plea counsel as to his reasoning, that such a decision was manifestly unreasonable. This was so for at least three reasons.
First, the defendants intoxication defense was hardly assured of success. On the one hand, the defendant testified at the evidentiary hearing that he was unaware at the time of his arrest that a 209A order had issued against him. On the other hand, plea counsel presumably would have been aware of the police report, which directly contradicted the defendants assertions. Moreover, plea counsel stated at the plea hearing that, although the defendant “was in an intoxicated state when served,” he said to police at the time of his arrest for violating the order, “Okay, I get it. I was wrong to go there.”
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Counsel could also have considered that raising an intoxication defense on the element of the defendants knowledge of the 209A order would likely have required putting the defendant on the witness stand, which would have presented its own risks.
Second, the Commonwealth stated at the October 30, 2015 plea hearing that the victim had an existing 209A order in place against the defendant at the time of the incident. At that hearing, and in his memorandum in support of his motion for a new trial, the defendant admitted to the existence of prior orders and that he had previously been charged with violating an order obtained by the victim. The plea judge observed that the defendants record included a 2013 conviction of domestic assault and battery on the same victim, leading to a sentence of two and one-half years, with ninety days committed and the balance suspended. If the defendant had chosen to go to trial and been convicted, these facts could well have furnished a reason for a more severe sentence than what the plea judge imposed, which involved only four more months of committed time beyond that which the defendant had already served.
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Lastly, the defendant also faced a malicious destruction of property charge, on which the Commonwealth was seeking a sentence of two years committed in the house of correction. The defendant did not seek to withdraw his guilty plea as to that charge. As far as the record shows, the defendant had no defense to that charge, and therefore, even if he had escaped committed time on the 209A order violation charge, he risked facing such time on the malicious destruction charge.
Despite these factors that could have influenced plea counsels strategic thinking, the defendant submitted nothing from plea counsel to shed light on why counsel did not pursue an intoxication defense. Instead, current defense counsel took the position that he had no obligation to seek or obtain such evidence. See note 2, supra. Even if, at the motion hearing, the victim might have testified favorably to the defendant about his intoxication at the time of service, it remains the case that, without evidence of plea counsels reasoning, the judge could not properly have found that plea counsel provided ineffective assistance. Therefore, the judge did not abuse her discretion in denying the defendants motion for a new trial.
Order denying motion for new trial affirmed.
FOOTNOTES
2
. The defendant also argues that his intoxication at the time he violated the 209A order gave rise to an additional defense: that he lacked the requisite scienter to violate it. A 209A order violation, however, “requires no more knowledge than that the defendant knew of the order.” Delaney, 425 Mass. at 596-597 (court declines “to read any additional mens rea requirements into the statute”).
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. Current defense counsels September 5, 2019 affidavit, filed in support of the new trial motion, stated that he had been in communication with plea counsel and expected to speak with him the following week. At a subsequent, nonevidentiary hearing on the motion, the Commonwealth observed that no affidavit from plea counsel had yet been filed, nor had counsel been summonsed. Current defense counsel replied that he was not obligated to call plea counsel as a witness in order to establish ineffective assistance. The defendants failure to summons plea counsel to testify at the evidentiary hearing was significant. Cf. Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 549, 552 (2014) (where defendant attempted to obtain affidavit, but plea counsel was uncooperative, judge improperly decided motion based on absence of affidavit; case was remanded for evidentiary hearing to “permit the judge ․ to hear from plea counsel”).
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. Plea counsel also stated that he had reviewed the elements of the crime and possible defenses with the defendant, and the defendant stated that he was satisfied with plea counsels advice.
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. On count 2, violation of the 209A order, the defendant was sentenced to two years committed in the house of correction, with nine months to serve, the balance suspended for two years, and two years probation, with 160 days jail credit. On count 1, malicious destruction of property, he was sentenced to two years of straight probation. Count 3, trespass, was guilty-filed.