Commonwealth v. Paul Collins.

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

22-P-438

COMMONWEALTH

vs.

PAUL COLLINS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Over three years after he pleaded guilty to various sex

offenses, the defendant filed a motion pursuant to Mass. R.

Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), seeking

to withdraw his pleas on the ground that his plea counsel was

ineffective. On July 23, 2021, the same judge who presided over

the defendant's change of plea hearing denied the motion after

an evidentiary hearing. We affirm.

Background. 1. The defendant's pleas. We summarize the

facts found by the judge, supplemented with undisputed facts

from the record. See Commonwealth v. Dew, 492 Mass. 254, 255

n.2 (2023), quoting Commonwealth v. Smiley, 431 Mass. 477, 481

(2000) ("In examining the defendant's claim that his counsel was

ineffective, we accept the motion judge's subsidiary findings of

fact absent clear error"). The defendant was the aquatic
director and swim team coach at the Arlington Boys Club from

September 1977 until July 1980, when he was asked to resign

after allegations surfaced that he had sexually assaulted one of

the boys on the swim team. The defendant moved out of State

shortly thereafter.

Police learned of the sexual assault allegations against

the defendant in 2013, by which time "multiple people" had come

forward. The defendant was arrested at his home in New York and

interviewed by Arlington police on May 17, 2013. During the

interview, the defendant denied the sexual abuse allegations,

while also making statements acknowledging that it was possible

sexual abuse had occurred of which he had no recollection. 1

Later in the interview, the defendant said "All right. I might

have been over friendly with the two kid --, a couple of kids,

but I did not rape anybody. . . . I did not force myself on

anybody. " When asked to describe what he meant by "over

friendly," the defendant stammered, "I, I . . . I, ah, yeah, I

know. I know." He then asked the officers to "just give [him]

a second," at which point the interview appears to have ended.

The following month, a grand jury returned an indictment

1 For example, when police asked the defendant if it was
"possible that something . . . could have happened with one of
the kids" while the defendant was under the influence of
prescription opioid medication, the defendant responded, "I
suppose everything is -- yes. I guess this would be possible,
but I don't remember anything like that happening."

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charging the defendant with one count of rape of a child with

force, three counts of indecent assault and battery on a child

under the age of fourteen, and one count of open and gross

lewdness.

Counsel for the defendant was appointed and met with him at

least ten times between May 24, 2013, and his change of plea

hearing on February 6, 2015. Due to the age of the victims'

allegations, trial counsel researched the applicable statute of

limitations, which is set forth in G. L. c. 277, § 63 (§ 63).

Section 63 states, in relevant part, that where a complaint or

indictment for rape or sexual assault of a child is filed more

than twenty-seven years after the commission of the alleged

crime, "such offense shall be supported by independent evidence

that corroborates the victim's allegation." Trial counsel "did

no significant research into the meaning" of "corroborates"

within the context of § 63 but believed that the multiple

victims' accusations corroborated one another and were further

corroborated by evidence the defendant worked at the Boys Club

and had left the Commonwealth in 1980 after he was informed of

the allegations.

Trial counsel advised the defendant that he had little

chance of prevailing at trial because the victims had no motive

to lie, and warned him that because there were multiple victims,

he could face consecutive sentences if convicted. After

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entering his guilty pleas in February 2015, the defendant was

sentenced to concurrent sentences of eight to ten years in State

prison followed by ten years of probation.

2. Subsequent developments. Over one year after the

defendant entered his guilty pleas, in Commonwealth v. White,

475 Mass. 724, 725 (2016), the Supreme Judicial Court (SJC)

considered, for the first time, the meaning of § 63's

corroboration requirement. Applying the standard articulated in

Commonwealth v. Helfant, 398 Mass. 214, 219 (1986), the SJC held

that § 63 requires corroborating evidence that relates "to the

specific criminal act at issue and, in particular, . . .

consist[s] of 'some specific testimonial fact, which, in the

context of the case, is probative on an element of the crime.'"

White, supra at 739, quoting Helfant, supra at 219. The SJC

opined that, although the Helfant standard had originated from

the interpretation of a different statute's corroboration

requirement, G. L. c. 272, § 11, the standard was "especially

appropriate for defining the corroboration requirement" of § 63

because "[i]t distills our construction of comparable

corroboration requirements, derives from the interpretation of a

statute relating to sexual crimes, and furthers the statutory

aim of ensuring that the occurrence of the criminal act alleged

by a victim is proved, at least in part, by some source other

than the victim's testimony." White, supra at 739-740.

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After reading White and Helfant, trial counsel concluded

that she had "made a mistake" in advising the defendant, as

there had not been any corroborating evidence in his case within

the meaning of § 63. She testified at the evidentiary hearing

on the motion for new trial that if she had been aware of

Helfant and been able to predict the SJC's future ruling in

White before the defendant entered his pleas, she would have

filed a motion to dismiss and advised him he had a good chance

of prevailing at trial. Counsel sought to rectify "[her]

mistake" by notifying the defendant and requesting the

appointment of postconviction counsel.

On April 26, 2018, the defendant filed a motion seeking to

withdraw his guilty pleas, arguing that his decision to accept

the plea agreement was not made knowingly, voluntarily, or

intelligently because his plea counsel failed to adequately

research and inform him of the corroboration requirement of

§ 63. The defendant's motion was denied after an evidentiary

hearing, and this appeal followed.

Discussion. 1. Standard of review. "A motion to withdraw

a guilty plea is treated as a motion for a new trial under Mass.

R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001)."

Commonwealth v. Jean-Louis, 102 Mass. App. Ct. 348, 351 (2023).

"A judge may grant the defendant's motion only if it appears

that justice may not have been done" (quotations and citations

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omitted). Commonwealth v. Furr, 454 Mass. 101, 106 (2009).

"Where an evidentiary hearing is conducted on a motion for a new

trial, we 'accept the [judge's] findings where they are

supported by substantial evidence in the record,' and we 'defer

to the judge's assessment of the credibility of witnesses.'"

Dew, 492 Mass. at 260-261, quoting Commonwealth v. Tate, 490

Mass. 501, 505 (2022). "[W]e review the judge's decision for

abuse of discretion or clear error of law, and we reverse only

if it appears 'manifestly unjust, or . . . the [proceeding] was

infected with prejudicial constitutional error.'" Commonwealth

v. Loring, 463 Mass. 1012, 1013 (2012), quoting Commonwealth v.

Russin, 420 Mass. 309, 318 (1995).

2. Effective assistance of counsel. "Before deciding

whether to plead guilty, a defendant is entitled to 'the

effective assistance of competent counsel.'" Commonwealth v.

Minon, 102 Mass. App. Ct. 244, 247 (2023), quoting Padilla v.

Kentucky, 559 U.S. 356, 364 (2010). In order to make out a

claim that plea counsel was ineffective, "a defendant must . . .

show serious incompetency of counsel (behavior falling

measurably below that which might be expected from an ordinarily

fallible lawyer) and prejudice." Commonwealth v. Mahar, 442

Mass. 11, 15 (2004). See Commonwealth v. Saferian, 366 Mass.

89, 96 (1974).

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a. Competency of counsel. Here, the defendant contends

his plea counsel was incompetent because she failed to properly

research the corroboration requirement of § 63. In analyzing

this claim, we consider whether defense counsel acted "within

the range of competence demanded of attorneys in criminal cases"

at the time of the defendant's February 2015 change of plea

hearing, and do not view her conduct "retrospectively through

the lens of subsequent events" (citation omitted). Mahar, 442

Mass. at 17.

Although Helfant was issued approximately thirty years

before the defendant's change of plea hearing, the SJC in

Helfant did not interpret "corroboration" within the context of

§ 63, but rather in the context of G. L. c. 272, § 11, which

appears in a different chapter of the General Laws and contains

language -- absent from § 63 -- that requires allegations of

certain crimes against the public be corroborated "in a material

particular." Here, the defendant was charged with crimes

against the person. Before White, it would have been reasonable

to conclude that the absence from § 63 of language requiring

corroboration "in a material particular" meant that § 63's

corroboration requirement could be satisfied by a broader range

of evidence than that required by G. L. c. 272, § 11.

Therefore, counsel acted within the range of competence demanded

of criminal attorneys when she did not assume, at the time of

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the defendant's change of plea hearing, that Helfant controlled

this case.

The defendant's suggestion that his counsel should have

nevertheless anticipated that the SJC would eventually rely on

Helfant to define the corroboration requirement of § 63 would

have required a level of prescience that is not required by our

case law. See Mahar, 442 Mass. at 19 (attorneys not required

"to foretell the future"). Counsel's failure to predict, before

White was decided, that the definition of "corroborate" used in

Helfant was applicable to § 63, did not constitute ineffective

assistance. 2 See Mahar, supra at 19 ("the attorney's advice was

reasonable, and it did not become incompetent because a

subsequent judicial opinion made clear an aspect of the offense

that previously was less certain").

2 In ordinary usage, the term "corroborate" means "[t]o
strengthen or confirm; to make more certain." Black's Law
Dictionary (11th ed. 2019). This definition of "corroborate,"
which appears to be the definition that trial counsel presumed
was applicable to § 63 during the plea proceedings, is used
throughout our criminal case law. See, e.g., Commonwealth v.
Ahart, 464 Mass. 437, 440 (2013) (cell phone records
"corroborated much of [witness's] testimony" concerning his
whereabouts at time of crime); Commonwealth v. DiGiambattista,
442 Mass. 423, 431 (2004) (defendant's guilt "corroborated" by
his anger toward victim and evidence he was one of only three
people with keys to door used by perpetrator); Commonwealth v.
Santiago, 54 Mass. App. Ct. 656, 660 n.7 (2002) ("'corroborate'
means to confirm or support the credibility of the victim's
testimony").

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b. Prejudice. Even assuming arguendo that trial counsel's

failure to anticipate the holding in White was behavior falling

measurably below that expected from an ordinary fallible lawyer

(a conclusion we do not reach here), the defendant cannot show

that he was prejudiced. "In the context of a guilty plea, in

order to satisfy the prejudice requirement, the defendant has

the burden of establishing that there is a reasonable

probability that, but for counsel's errors, he would not have

pleaded guilty and would have insisted on going to trial"

(quotations and citation omitted). Commonwealth v. Lastowski,

478 Mass. 572, 577 (2018). "Additionally, the defendant must

'convince the court that a decision to reject the plea bargain

would have been rational under the circumstances.'" Id.,

quoting Commonwealth v. Clarke, 460 Mass. 30, 47 (2011). This

requires a showing that the defendant had an available,

substantial ground of defense that he would have pursued but for

counsel's alleged error, or that there is a reasonable

probability that a different plea bargain could have been

negotiated. See Clarke, supra.

Here, even if counsel had anticipated that § 63's

corroboration requirement would be interpreted by analogy to

Helfant, the defendant's ability to defend the charges would

have remained the same, because the corroboration requirement

was satisfied by his statements to police. In particular, the

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judge could have reasonably inferred that, viewed collectively

and in context, the defendant tacitly admitted to committing the

alleged rape and sexual assaults when he conceded that it was

"possible" the sexual assaults had occurred, and later, that he

"might have been overly friendly with . . . a couple of kids."

See Commonwealth v. Buono, 484 Mass. 351, 364 (2020) (viewed

within context of victim's allegations, grand jury could have

reasonably inferred word "it" in defendant's statement, "it

wasn't gonna happen again," was reference to "the alleged oral

rapes for which the defendant was charged, therefore providing

the . . . corroborating evidence" required by § 63). Contrast

White, 475 Mass. at 735, 740 (testimony that witness saw sexual

abuse on later date and in different location than charged

offenses did not satisfy § 63 corroboration requirement). Cf.

Commonwealth v. Grenier, 415 Mass. 680, 689 (1993) ("the

defendant's response, dropping his head, saying no, pausing, and

then denying involvement, . . . could be seen collectively as an

admission by word and deed"); Commonwealth v. MacKenzie, 413

Mass. 498, 506 (1992) (equivocal response to accusatory

statement "which, under the circumstances, a reasonable person

would challenge," admissible to support theory that "the party's

response amounts to an admission of the truth of the

accusation"); Commonwealth v. Cancel, 394 Mass. 567, 571 (1985),

quoting Commonwealth v. Machado, 339 Mass. 713, 715-716 (1959)

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(responses to incriminating accusations made in "an equivocal,

evasive or irresponsive way inconsistent with . . . innocence"

admissible as evidence of guilt). Rather than negate this

inference, the defendant's assertion that he never "forced"

himself on anyone could reasonably be construed as an effort to

mitigate his culpability for the assaults by emphasizing the

absence of physical coercion.

Because the defendant's statements to police provided

sufficient corroboration of the victims' allegations within the

meaning of § 63, the defendant was not deprived of an available,

substantial ground of defense, nor did a reasonable probability

exist that a different plea bargain could have been negotiated.

Therefore, we discern no abuse of discretion in the judge's

conclusion that the defendant did not establish that, but for

his counsel's alleged incompetency, it would have been rational

for the defendant to reject the plea agreement.

Order denying motion to
withdraw guilty pleas
affirmed.

By the Court (Blake, Walsh &
Hershfang, JJ. 3),

Clerk

Entered: August 21, 2023.

3 The panelists are listed in order of seniority.

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