Commonwealth v. Daniel Mulkern.

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

24-P-1263

COMMONWEALTH

vs.

DANIEL MULKERN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On November 16, 2017, a grand jury indicted the defendant

for (1) trafficking between one hundred grams and two hundred

grams of oxycodone, in violation of G. L. c. 94C § 32E (c);

(2) trafficking between eighteen grams and thirty-six grams of

cocaine, in violation of G. L. c. 94C § 32E (b); (3) possession

of heroin with intent to distribute, in violation of G. L.

c. 94C § 32 (a), subsequent offense; (4) possession of a class B

substance (MDMA) with intent to distribute, in violation of

G. L. c. 94C § 32A (a), subsequent offense; and (5) possession

of a class B substance (fentanyl) with intent to distribute, in

violation of G. L. c. 94C § 32A (a). At a May 1, 2019 jury-

waived trial, a Superior Court judge found the defendant guilty
of count one of the indictment, guilty of lesser included

offenses on counts two through four,1 and not guilty of count

five. The judge sentenced the defendant on count one to from

eight to ten years in State prison, on count two to five years

of probation to run from and after the sentence on count one,

and on counts three and four to one-year committed to run

concurrently with the sentence on count one. The defendant then

moved for a new trial, arguing that he received ineffective

assistance of counsel because his attorney misadvised him about

the likelihood of prevailing at trial, which caused the

defendant to reject three different plea offers. The motion

judge, who was not the trial judge, denied the motion without an

evidentiary hearing, concluding that while defense counsel's

exercise in judgment turned out to be wrong, it was not

constitutionally ineffective. The defendant appeals.2 We

affirm.

Discussion. A judge may grant a motion for a new trial

"only 'if it appears that justice may not have been done.'"

Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992), quoting

1 The subsequent portions of counts three and four were
dismissed.

2 We note that in this consolidated appeal of his judgments
of conviction and the order denying his motion for new trial,
the defendant presents arguments solely with respect to the
denial of his motion for new trial.

2
Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). "Where, as

here, the motion judge was not the trial judge and the evidence

provided was purely documentary, our review is de novo."

Commonwealth v. Watt, 493 Mass. 322, 328 (2024), citing

Commonwealth v. Lykus, 451 Mass. 310, 326, (2008).

Counsel is ineffective when "(1)'there has been serious

incompetency, inefficiency, or inattention of counsel --

behavior of counsel falling measurably below that which might be

expected from an ordinary fallible lawyer'; and (2) as a result,

the defendant was 'likely deprived . . . of an otherwise

available, substantial ground of defence.'" Commonwealth v.

Henley, 488 Mass. 95, 134 (2021), quoting Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). The defendant has the burden

of proving an ineffective assistance of counsel claim.

Commonwealth v. Montez, 450 Mass. 736, 755 (2008).

The constitutional entitlement to the effective assistance

of counsel in a criminal proceeding "plainly includes counsel's

effective assistance in connection with the defendant's decision

whether to accept or reject a plea bargain offer made by the

Commonwealth." Commonwealth v. Mahar, 442 Mass. 11, 14 (2004).

"In considering claims based on the incompetence of the legal

advice bearing on the likelihood of acquittal, a court must be

acutely aware of the temptation of a defendant to second guess

his decision and counsel's advice in light of subsequent adverse

3
events." Id. at 17. "[A] defense attorney's simple misjudgment

as to the strength of the prosecution's case, the chances of

acquittal, or the sentence a defendant is likely to receive upon

conviction, among other matters involving the exercise of

counsel's judgment, will not, without more, give rise to a claim

of ineffective assistance of counsel" (citation omitted). Id.

"Judicial scrutiny of counsel's performance must be highly

deferential, 'indulg[ing] a strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance.'" Commonwealth v. Florentino, 396 Mass. 689, 690

(1986), quoting Strickland v. Washington, 466 U.S. 668, 669

(1984).

Here, the defendant argues that his representation was

constitutionally deficient because defense counsel overestimated

the chances of success at trial by comparing the likelihood of

success to a "'jump ball' in a basketball game, meaning that the

outcome could go either way and was as likely to be favorable as

it was to be unfavorable." The defendant claims that the

chances of success were, in fact, near zero, and his attorney's

assessment caused him to reject three plea offers that were more

favorable than the sentence that the defendant ultimately

received following his jury-waived trial.3 See Mahar, 442 Mass.

3 The three plea offers were as follows: (1) from eight
years to eight years and one day in State prison with two years

4
at 14 (holding right to counsel includes right to assistance in

deciding whether to accept plea offer).

Defense counsel's guidance in the defendant's decision to

accept the Commonwealth's plea offers fell "within the wide

range of reasonable professional assistance." Florentino, 396

Mass. at 690, quoting Strickland, 466 U.S. at 669. Defense

counsel's trial strategy was to argue that the police were

rogue, and the police witnesses' accounts of the defendant's

arrest were not credible, a strategy that offered the defendant

the possibility of acquittal on all charges. Although the

defendant's unsuccessful motion to suppress also hinged on

attacking the credibility of police witnesses, the seasoned

defense attorney had reason to believe that strategy could very

well prevail at the jury-waived trial. First, defense counsel

identified a new witness to the arrest whose account

contradicted the police's account. Second, defense counsel's

informed experience with the trial judge, who did not preside

over the motion to suppress, led defense counsel to believe the

of probation from and after his release; (2) from five and one-
half years to seven years in State prison with three years of
probation from and after his release; and (3) a minimum of seven
years in State prison with three years of probation from and
after his release. The trial judge sentenced the defendant to
from eight to ten years in State prison with five years of
probation from and after his release.

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judge would be receptive to a trial strategy attacking the

credibility of the police witnesses.

Though the defense did not succeed at trial, counsel's

assessment in no way fell to the level of ineffective

assistance, especially when counsel advised the defendant before

trial that there was as much chance that the strategy would fail

as that it would succeed. See Mahar, 442 Mass. at 17 ("a court

must be acutely aware of the temptation of a defendant to second

guess his decision and counsel's advice in light of subsequent

adverse events"). In fact, the decision to waive a jury trial

appears to have been modestly successful. With regard to counts

two through four, the judge sua sponte found the defendant

guilty of lesser included offenses. The judge also found the

defendant not guilty on count five because he believed it was

inappropriate to convict the defendant for two substantive

charges based on possession of a single packet of mixed

substances -- an argument not advanced by defense counsel. And

although the committed sentence of from eight to ten years and a

five-year term of probation somewhat exceeded any of the plea

offers made to the defendant, the sentence is much closer to the

sentences contemplated in the plea offers than the thirty-year

maximum exposure the defendant was facing on count one alone.

Because defense counsel had reasons to believe the trial

strategy could succeed and communicated to the defendant that

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the strategy might fail, we are not convinced that defense

counsel made a "misjudgment as to . . . the chances of

acquittal," let alone mistakes that would rise to the level of

ineffective assistance of counsel. Mahar, 442 Mass. at 17. We

therefore agree with the motion judge's conclusion that the

defendant failed to establish that defense counsel was

constitutionally ineffective.4

Judgments affirmed.

Order denying motion for new
trial affirmed.

By the Court (Blake, C.J.,
Desmond & Singh, JJ.5),

Clerk

Entered: October 15, 2025.

4 Because the knowable facts relevant to the ineffective
assistance of counsel claim are undisputed, we also decline to
remand for an evidentiary hearing. See Commonwealth v.
Goodreau, 442 Mass. 341, 348-349 (2004) ("If the theory of the
motion, as presented by the papers, is not credible or not
persuasive, holding an evidentiary hearing to have the witnesses
repeat the same evidence . . . will accomplish nothing").

5 The panelists are listed in order of seniority.

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