Commonwealth v. Walter Mains.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-921

COMMONWEALTH

vs.

WALTER MAINS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a Superior Court order denying

his motion to withdraw his guilty pleas due to ineffective

assistance of counsel premised upon conflict of interest,

specifically, his plea counsel's bias against African-Americans,

a racial class of which the defendant is a member. After

review, we conclude that the defendant established an actual

conflict of interest. As a result, we reverse.

Background. After indictments issued charging the

defendant with an October 2009 armed robbery and assault and

battery of a woman in Boston, and a November 2009 assault with

intent to rob and assault and battery of another woman in

Boston, the defendant was arraigned and appointed counsel on
April 2, 2010.1 The defendant remained in custody on bail. On

March 22, 2011, successor counsel (plea counsel) was appointed

to represent the defendant.2 After some motion practice, on June

30, 2011, the defendant "offer[ed] to plead guilty to all

offenses as charged." He pleaded guilty that day and received

an aggregate sentence of two years, with eighteen months to

serve in the house of correction and the balance suspended for

two years, during which time the defendant was to be on

probation. The defendant was deemed to have served the

committed portion of his sentence at that time.3

1 On the date of arraignment, the defendant was appointed
counsel on a "stand-by" basis only, with the appointment of
ongoing counsel taking place a few days later on April 6, 2010.

2 In May 2010, the month following the initial appointment
of counsel, the defendant moved to discharge counsel, but the
motion was denied. Over the next few months, appointed counsel
proceeded to engage in discovery and motion practice on behalf
of the defendant. In September 2010, the defendant was
committed to a state hospital for observation due to mental
health concerns. See G. L. c. 123, § 18 (a). In December 2010,
the defendant's attorney requested a competency evaluation. On
January 28, 2011, the defendant was deemed competent to stand
trial, following which the case was set down for a change of
plea hearing. On February 3, 2011, the defendant again moved to
discharge counsel. After the defendant was again examined for
competency and determined to be competent, the court heard the
defendant's motion to discharge counsel and allowed it. Plea
counsel was appointed the following month.

3 Within two months of sentencing, the defendant was alleged
to be in violation of probation. Extensive proceedings
followed, including further examinations concerning the
defendant's competency. The defendant was later civilly
committed. See Commonwealth vs. Mains, Suffolk Sup. Ct., No.
1184CR11096 (Jul. 29, 2021). See also Commonwealth vs. Mains,

2
Twelve years later, in June 2023, the Supreme Judicial

Court issued Commonwealth v. Dew, 492 Mass. 254 (2023), in which

it held that the same attorney who had represented the defendant

at his plea hearing harbored "animus against persons of the

Muslim faith" and "racism against Black persons," such that his

representation of the defendant in the Dew case -- a Black,

Muslim man -- "presented an actual conflict of interest." Id.

at 266. The Court's conclusion was grounded in a series of

social media postings and text messages made and sent by plea

counsel expressing "vitriolic hatred of and bigotry against

persons of the Muslim faith . . . matched only by his equal

scorn for and racism against Black persons." Id. at 254-255.

The postings were made during the time that plea counsel

represented the Dew defendant, who was a Black person and

followed the Muslim faith. Further, plea counsel "ordered [Dew]

to stop wearing his religious garb and refused to meet with

[him], choosing instead to forgo the opportunity to discuss the

merits of the criminal case, upon seeing that the defendant was

wearing his kufi." Dew, 492 Mass. at 268. The Court

accordingly vacated the conviction, allowed the defendant to

Mass. App. Ct., No. 23-P-514 (pending decision, entered May 8,
2023).

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withdraw his guilty plea, and remanded the case for a new trial.

Id. at 268.

The following month, the defendant filed a motion for new

trial, arguing that his case presented the "exact issue"

discussed in Dew. The motion was supported by the defendant's

unsigned affidavit, stating that he "identif[ied] as African-

American," he assumed that his appointed counsel "would execute

his legal duties in a respectful and professional manner," and

he "never imagined that the fact that [he was] African American

would matter in the least to [his] court appointed counsel."

The motion was also supported by the 2021 affidavit of a staff

attorney at the Committee for Public Counsel Services (CPCS),

who related that in September 2017 she viewed the publicly

available Facebook page of the defendant's plea counsel. The

affidavit went on to describe several posts going back to 2014.

In his motion the defendant argued that the posts alone

established an actual conflict of interest that deprived the

defendant of his right to the effective assistance of counsel.

A judge of the Superior Court denied the motion without a

hearing, noting that, "Defendant's affidavit is unsigned and the

allegations therein, even if true, do not establish an actual

conflict of interest or a potential conflict with material

prejudice. The docket sheet reflects active litigation by [plea

counsel] on defendant's behalf and a favorable outcome."

4
Discussion. We review the denial of a motion for new trial

for significant error of law or other abuse of discretion. See

Commonwealth v. Tate, 490 Mass. 501, 505 (2022). However, we

"make an independent determination as to the correctness of the

judge's application of constitutional principles to the facts as

found." Dew, 492 Mass. at 261, quoting Commonwealth v.

Caldwell, 487 Mass. 370, 374 (2021).

The Sixth Amendment to the United States Constitution and

art. 12 of the Massachusetts Declaration of Rights guarantee to

criminal defendants the right to the effective assistance of

counsel. See Strickland v. Washington, 466 U.S. 668, 686

(1984); Commonwealth v. Saferian, 366 Mass. 89, 96 (1974),

citing Commonwealth v. Libby, 358 Mass. 617, 621-622 (1971).

The right to the effective assistance of counsel is violated

when a defendant is represented by a lawyer whose actual

conflict of interest threatens to sway the lawyer's decision

making.4 See Dew, 492 Mass. at 263 n.22, quoting Commonwealth v.

Perkins, 450 Mass. 834, 851-852 (2008), and Comment [4] to Mass.

4 "Where no actual conflict exists, 'an attorney's personal
interests or obligations may still give rise to a "potential"
conflict,' . . . which requires reversal upon an additional
showing of 'material prejudice.'" Dew, 492 Mass. at 265 n.26,
quoting Commonwealth v. Mosher, 455 Mass. 811, 823 (2010), and
Commonwealth v. Tate, 490 Mass. at 509. Because the defendant
did not claim there was a potential conflict on appeal, we do
not consider it. See Mass. R. A. P. 16 (a) (9) (A), as
appearing in 481 Mass. 1628 (2019).

5
R. Prof. C. 1.7, 426 Mass 1330 (1998) (actual conflict of

interest arises where lawyer has competing interest or

responsibility that will materially interfere with lawyer's

independent professional judgment in considering alternatives or

foreclose courses of action that reasonably should be pursued on

behalf of client). "The analysis [of] whether an actual

conflict arose is case-specific." Dew, supra, citing

Commonwealth v. Cousin, 478 Mass. 608, 618 (2018), S.C., 484

Mass. 1042 (2020). Once a defendant establishes an actual

conflict of interest, "he is entitled to a new trial without a

further showing; he need not demonstrate that the conflict

adversely affected his lawyer's performance or resulted in

actual prejudice." Dew, supra at 263-264, quoting Commonwealth

v. Mosher, 455 Mass. 811, 819 (2010).

On appeal, the defendant contends that the judge erred in

ruling that he had failed to establish an actual conflict of

interest since he relied on the same Facebook posts that the

Supreme Judicial Court did in determining that plea counsel had

a disabling conflict of interest in Dew. However, this case

presents the question explicitly left open in Dew, whether plea

counsel's Facebook posts alone rendered him categorically unable

to represent any defendant belonging to one of the groups

referenced in his posts. Compare Dew, 492 Mass. at 266 n.27,

with id. at 268-270 (Cypher, J., concurring). The defendant

6
asks us to answer that question without regard for when the

posts were made in relation to the representation and

irrespective of plea counsel's other conduct during the

representation.5 We answer only the narrow question whether the

posts at issue establish an actual conflict for this defendant;

on that basis, we conclude that they do.

We acknowledge that, unlike the circumstances in Dew, the

Facebook posts were not made and shared during the time plea

counsel represented the defendant, see Dew, 492 Mass. at 257,

and that, unlike the situation in Dew, plea counsel did not make

explicitly racist or bigoted statements to the defendant during

his representation. Compare id. at 255-256 (plea counsel

"chastised the defendant" at least twice "for wearing religious

garb" and would not speak with the defendant solely on account

of the defendant's choice to freely exercise his religious

beliefs). Cf. Goldman v. Weinberger, 475 U.S. 503, 507 (1986)

(for members of the civilian population, wearing religious garb

is protected by the free exercise clause). In this case,

however, we do not consider either the three-year gap between

plea counsel's representation of the defendant and the posts or

5 At argument, counsel for the defendant claimed that he was
asking for an "extension" of the rule of decision from Dew,
which would work to supply relief to, with certain exclusions,
all of plea counsel's former clients.

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the fact that plea counsel did not add private abuse of the

defendant here to the public airing of his racist views to bar

the defendant's claim of actual prejudice.6 Plea counsel created

a "pattern of [social media] posts," Dew, 492 Mass. at 266, that

reflected an intense racism and bigotry that we cannot conclude

developed overnight and which we do not conclude sprang into

existence in the relatively short time between 2011 and 2014.

Similarly, although we acknowledge that the defendant did not

suffer the explicitly bigoted treatment that plea counsel

visited on his client in Dew, where the Supreme Judicial Court

has already concluded that plea counsel's social media postings,

taken alone, exhibit extreme bias, we do not read Dew to require

6 We do not rule out the possibility that, in a different
case, a break in time between an attorney's expression of racist
or bigoted views and his representation of a client to whom
those views would apply could impact the actual conflict
analysis. It is, of course, a fundamental premise of our
criminal justice system that individuals are capable of reform
and rehabilitation. See, e.g., Matter of Allen, 400 Mass. 417,
425 (1987), quoting March v. Committee of Bar Examiners, 67 Cal.
2d 718, 732 (1967) ("A fundamental precept of our system
[particularly our correctional system] is that [people] can be
rehabilitated"). See also Commonwealth v. Sharma, 488 Mass. 85,
88 (2021), citing Henschel v. Commissioner of Correction, 368
Mass. 130, 136 (1975) (stating "the fact that the statutory
purpose of parole is to determine whether a prisoner is
rehabilitated"); LaMorre v. Superintendent of Bridgewater State
Hosp., 347 Mass. 534, 538 (1964) (sexually dangerous persons
statute's purpose is "to cure and rehabilitate [offenders] as
soon as possible"). A corollary of the ability to reform and
atone for one's conduct, and of human agency itself, is an
individual's ability to deteriorate or degenerate.

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overt acts to "confirm" the existence of an actual conflict.

Id.

Because we conclude that, on these facts, the defendant

showed bias on the part of plea counsel that necessarily

infected his representation of the defendant, we part ways with

the motion judge and hold that the defendant did establish an

actual conflict of interest.7

Order entered July 27, 2023,
denying motion for new
trial and to withdraw
guilty pleas, reversed.

By the Court (Singh, Hand &
D'Angelo, JJ.8),

Clerk

Entered: December 18, 2024.

7The defendant initially framed his argument as an equal
protection challenge, contending that the very appointment of
plea counsel to represent him constituted a violation of his
State constitutional right to "equality under the law" and
Federal constitutional right to "equal protection of the laws"
because, as a result of the appointment of a lawyer racially
biased against him, he bore a greater burden than white
defendants. He does not argue, however, that the appointment
itself was motivated by racial bias. As a result, his equal
protection claim fails. See Commonwealth v. Shephard, 493 Mass.
512, 525 (2024) (neutral decision with disparate impact
unconstitutional only if impact can be traced to discriminatory
purpose).

8 The panelists are listed in order of seniority.

9