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Marchetti v. Atwood

Superior Court of Massachusetts, Plymouth

November 21, 2017

Carl MARCHETTI
v.
Jack M. ATWOOD and Jack M. Atwood, P.C.

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS

          MICHAEL D. RICCIUTI, Justice

         Plaintiff Carl Marchetti contends that defendant, attorney Jack M. Atwood and his professional corporation, Jack M. Atwood, P.C. (collectively, " Atwood"), committed legal malpractice in connection with Atwood’s representation of Marchetti in a criminal case. As a result of the alleged malpractice, Marchetti claims that he served jail time for several offenses after he was found guilty at trial rather than receiving a sentence of home detention following a guilty plea. Marchetti thus brings claims for legal malpractice (Counts One and Two) and breach of contract (Counts Three and Four) against Atwood and his firm. In addition, Marchetti seeks relief pursuant to Chapter 93A against both defendants (Counts Five and Six).

         Before the Court is Atwood’s motion to dismiss under Mass. R. Civ. P. Rule 12(b)(6). In consideration of the parties’ helpful memoranda of law and illuminating oral arguments, [1] and for the reasons that follow, Atwood’s motion to dismiss is ALLOWED.

         FACTS

         Because it is evaluating the legal sufficiency of a complaint pursuant to Mass. R. Civ. P. 12(b)(6), the Court will accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff’s favor. See, e.g., Berish v. Bornstein, 437 Mass. 252, 267 (2002); Nader v. Citron, 372 Mass. 96, 98 (1977).

         Atwood submits public records to support his motion. The Court may properly consider these materials without converting the motion into one for summary judgment. See, e.g., Reliance Ins. Co. v. City of Boston, 71 Mass.App.Ct. 550, 555 (2008) (" while the allegations of the complaint generally control in evaluating a motion under rule 12(b)(6), matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account. Properly considered public records include the records of other courts in related proceedings, of which the judge may take judicial notice in any event") (citations, internal punctuation omitted).

         Marchetti was a pawn shop owner. On July 16, 2010, he was indicted in Commonwealth v. Marchetti, Barnstable Superior Court C.A. No. 1072-CR-00112 (the " Criminal Action"), on six counts of knowingly receiving stolen property in excess of two hundred and fifty dollars. Sometime in July 2010, Marchetti engaged Atwood to defend him in the Criminal Action. Marchetti agreed to pay Atwood a flat fee of $20, 000 for his legal services. Atwood did not provide Marchetti a written engagement letter or other contract, and thereafter did not provide Marchetti with itemized billing statements for the services Atwood performed.

         On July 23, 2012, Marchetti sought to change his not guilty plea to guilty, with the hope that he would receive no more than one year of home confinement as punishment. A judge of the Barnstable Superior Court held a plea colloquy on that date. During it, the parties offered their anticipated sentencing recommendations- the Commonwealth told the Court it would recommend one year of home confinement and ten years of probation, during which Marchetti would be prohibited from engaging in the sale of any precious metals, gems, stones, and the like, whereas Atwood, on Marchetti’s behalf, indicated he would recommend five years of probation. The Court advised Marchetti that, " [b]ased on everything I know up to this point, ... I will most likely give you a ten-year probationary period that includes the first year under home confinement; and for the entire ten-year period, conditions that include no dealing in precious metals, no dealing in precious stones, no smelting, no refining, no secondhand dealing."

         The change of plea went forward, and the Court engaged in a plea colloquy with Marchetti. After it, the Court accepted the guilty plea. The Clerk then asked Marchetti, " on Indictment 2010-112-01, charging you with ... six counts of receiving stolen property over $250, how do you plead to each and every count? Guilty or not guilty?" Marchetti responded, " guilty, " and confirmed that he had pled guilty willingly, freely and voluntarily, without being forced to plead guilty and without being promised or threatened in any manner. Accordingly, the Court found that the guilty plea was " voluntarily tendered with full knowledge of its consequences. In all respects, the plea is appropriate."

         After the Court accepted the plea, it heard defense counsel’s sentencing argument, and the following occurred:

MR. ATWOOD: I would suggest that the Defendant was facing a very difficult trial situation: Six very pathetic ... women would be taking the stand who are victims of a house break; and that’s obviously a sympathy invoking type situation ... [I]t would be a difficult trial because these women are absolutely flawless. And they would be saying, these are my items. And, of course, they value these items greatly, as to the retail value or even more. So, we were faced with that. We were also faced with an immunized individual who would be testifying that he took his aunt’s property and went to Defendant’s shop. And that’s also a difficult situation ... with regard to this case, if it was tried, it would have resulted in guilty at least on one of the charges. And I warned the Defendant that if he was convicted on one, he might well be treated and convicted on all six indictments. So, I’m suggesting ... that it would be a very difficult trial....
THE COURT: Stop. Stop right there. The matter stands for trial.... You are not going to stand in this courtroom and offer such heart-felt, sincere remorse. And I say that sarcastically. This matter stands for trial ... It is a continuation of everything I observed by his demeanor during his change of plea. Every bit of his demeanor was " Judge, I didn’t do this." And now his lawyer is basically telling me, Judge, he ain’t that bad a soul. You know, he just had the deck stacked against him. Sorry, I’m not buying it....
MR. ATWOOD: ... I apologize to the Court. I have failed my client. It’s- obviously something I have said is truly ineffective assistance of counsel here. I don’t know what else to say.

         At a subsequent hearing, the trial judge explained his reasons for ...


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