This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel tat decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
Cypher, Grainger & Maldonado, JJ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted in the District Court of accosting and annoying a person of the opposite sex, see G. L. c. 272, § 53, and assault and battery, see G. L. c. 265, § 13A, and was sentenced to three years' incarceration in the house of correction. He did not appeal. He did, however, file a motion for a new trial; this was allowed by the trial judge who then also accepted the defendant's guilty pleas to the same charges. The defendant was resentenced to two years in the house of correction with credit for 371 days served.
Prior to the defendant's release, the Commonwealth filed a petition for his commitment as a sexually dangerous person (SDP). However, prior to a trial, the Commonwealth withdrew the petition, and the defendant was released.
More than two months after his release the defendant filed a motion to withdraw his guilty pleas on the grounds that (1) trial counsel's failure to appeal the defendant's original convictions constituted ineffective assistance, and (2) the judge failed to advise the defendant at the plea hearing of potential SDP consequences. The same judge allowed a new trial on the basis that he had failed to advise the defendant of potential SDP consequences, but denied the motion as to all other grounds.
The Commonwealth moved for reconsideration of this ruling on multiple grounds: (1) that the defendant failed to assert that he was unaware of potential SDP consequences, (2) that the defendant had averred on his tender of plea form that his counsel had advised him of SDP consequences, (3) the favorable sentence reduction resulting from his pleas, (4) the defendant's lengthy criminal history, (5) the prejudice to the Commonwealth if required to retry the case after four years, and, most pertinent to our consideration, (6) the fact that no SDP consequences had resulted from the guilty pleas. The judge allowed the motion for reconsideration and, upon reconsideration, denied the defendant's motion for new trial in its entirety. The defendant timely appealed from this order and was allowed a late notice of appeal from the order denying his motion for new trial on other grounds. We affirm.
This claim need not detain us, as the defendant's guilty pleas constituted a waiver of defects in all prior proceedings. " A defendant's guilty plea, made knowingly, voluntarily and with the benefit of competent counsel, waives all nonjurisdictional defects in the proceedings prior to the entry of the guilty plea." Commonwealth v. Fanelli, 412 Mass. 497, 500, 590 N.E.2d 186 (1992).
Were we to consider the claim, it would not avail the defendant. The evidence produced at trial, recited in detail in the Commonwealth's brief at pages nine through eleven, was more than sufficient to support the convictions. Trial counsel's successful motion for a new trial, and the sentencing reduction after the subsequent guilty pleas, achieved a favorable result for the defendant that otherwise would have been unlikely. Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). This was a manifestly reasonable strategy on the part of counsel.
Potential SDP consequences.
This claim is also easily resolved. The defendant claims error in the judge's failure to advise him independently of SDP consequences despite the defendant's admission during the plea colloquy that his counsel had done so, and despite the defendant's signature on the tender of plea form which states that his plea " could trigger . . . commitment as a sexually dangerous person under G. L. c. 123A, § 12." We need not address this claim as no prejudice resulted. Although the Commonwealth ...