Commonwealth v. Anthony Freeman.

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-274

COMMONWEALTH

vs.

ANTHONY FREEMAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2007, following a jury trial in the Superior Court, the

defendant, Anthony Freeman, was convicted of armed robbery and

assault and battery by means of a dangerous weapon causing

serious bodily injury (ABDW-SBI). The defendant was then

arraigned on two habitual offender indictments and, following a

bench trial, convicted of both counts. Sixteen years later, the

defendant filed a "motion to vacate habitual offender

convictions" (motion to vacate) pursuant to Mass. R. Crim. P.

30 (b), as appearing in 435 Mass. 1501 (2001). That motion was

denied, and the defendant now appeals therefrom. We affirm.

Background. On October 28, 2005, the defendant and his

brother had an altercation with the victim during which the

defendant held a knife to the victim's throat, rummaged through

the victim's wallet, beat the victim and demanded his "PIN"
number, struck the victim over the head with a bottle, and stole

the victim's wedding band, car keys, wallet, gold chain, gold

bracelet, diamond ring, and other items.1 The defendant's

brother stabbed the victim during the altercation.

After the jury rendered guilty verdicts on the armed

robbery and ABDW-SBI counts, the trial judge asked the parties

about the status of the habitual offender indictments. The

prosecutor advised that he had "made an offer to the defendant"

regarding a plea bargain. Defense counsel responded that he had

discussed the offer with the defendant who "[did] not want to go

forward" with the plea and "[did] not want [to] waive his

appellate rights." The judge subsequently asked about the plea

offer.2 The prosecutor stated that the Commonwealth would

dismiss the habitual offender counts if the defendant "would

agree to serve 12 to 15 years in state prison," with "probation

1 A panel of this court affirmed the defendant's convictions
in a decision issued pursuant to our former rule 1:28 (now rule
23.0) on May 15, 2012. Further details regarding the underlying
facts of this case may be found therein.

2 Prior to further discussions regarding a possible plea
deal, the defendant expressed his intent to waive his right to a
jury trial. Moments later, however, the defendant expressed
some confusion about the process regarding a jury trial waiver.
In response, the judge stated, "I don't want you doing something
unless you completely understand what's happening," and allowed
defense counsel's request to allow the defendant to "think about
it over night." The next day of trial, following a colloquy
with the judge, the defendant waived his right to a jury trial.

2
from and after and waive his appellate rights." The judge then

stated as follows:

"I don't know how you would -- I'm not going to be a party
to that. I mean if you want to dismiss the habitual
criminal and you move[] for sentencing for what he was
charged for here, that's all right. I'm not going to be
party to him or have someone waive their appellate rights
for what took place at trial."

Defense counsel then repeated that the defendant would not waive

his appellate rights, and the judge responded, "And I wouldn't

blame him for not waiving them."

At the jury-waived trial on the habitual offender counts,

the Commonwealth presented evidence of the defendant's prior

convictions of various predicate offenses including breaking and

entering, manslaughter, armed robbery, and assault by means of a

dangerous weapon. The Commonwealth also presented evidence

confirming that the defendant was the same person who had been

convicted of the prior offenses. The judge subsequently found

the defendant guilty on both habitual offender counts and

sentenced him to life in prison on the armed robbery count (as a

habitual offender) and from fourteen to fifteen years in prison

on the ABDW-SBI count (as a habitual offender) to run

concurrently with the sentence imposed on the armed robbery

count.

On December 7, 2009, the defendant filed a motion for a new

trial, which included claims of ineffective assistance of

3
counsel. Following an evidentiary hearing, the judge, who was

also the trial judge, denied the motion. The defendant's direct

appeal was consolidated with his appeal from the denial of the

motion for a new trial. On May 15, 2012, a panel of this court

affirmed the judgments and the order denying the motion for a

new trial. On November 9, 2012, the defendant filed a motion to

revise and revoke his sentences pursuant to Mass. R. Crim. P.

29 (a), as appearing in 474 Mass. 1503 (2016). That motion was

denied by a different Superior Court judge on February 26, 2013.3

On March 27, 2023, the defendant filed the motion to vacate

that is the subject of the present appeal. A third Superior

Court judge (motion judge) conducted a nonevidentiary hearing

and, on February 5, 2024, denied the motion to vacate in a

written decision. The defendant filed a timely notice of

appeal.

Discussion. The defendant contends that the motion judge

abused her discretion in denying his motion to vacate. In

essence, the defendant argues that trial counsel rendered

ineffective assistance by failing to properly advise him of the

"certain conviction at the habitual offender trial," and failing

to identify and advise him of any viable appellate issues

3 As the trial judge had retired, another Superior Court
judge heard and denied the defendant's motion to revise and
revoke.

4
immediately after the jury trial had ended and before the

ensuing bench trial on the habitual offender indictments had

commenced. The defendant posits that had he understood the

proceedings, his likelihood of success on appeal, and his

likelihood of success at the habitual offender trial, he would

have accepted the Commonwealth's plea offer. The argument is

unavailing.

Pursuant to Mass. R. Crim. P. 30 (b), a judge may grant a

new trial "if it appears that justice may not have been done."

"In reviewing the denial of a motion for new trial, we examine

the motion judge's conclusions only to determine whether there

has been a significant error of law or other abuses of

discretion" (quotation and citation omitted). Commonwealth v.

Ferreira, 481 Mass. 641, 648 (2019). See L.L. v. Commonwealth,

470 Mass. 169, 185 n.27 (2014). "Motions for a new trial are

granted only in extraordinary circumstances." Commonwealth v.

Comita, 441 Mass. 86, 93 (2004). Where a motion for a new trial

is based on ineffective assistance of counsel, the defendant

must show that the behavior of counsel fell "below that . . .

[of] an ordinary fallible lawyer" and that such failing "likely

deprived [him] of an otherwise available, substantial ground of

defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

See Commonwealth v. Millien, 474 Mass. 417, 429-430 (2016).

5
Here, we first note that the defendant failed to raise the

present claim of ineffective assistance in his first motion for

a new trial or in his direct appeal, even though the claim was

available at that time.4 Indeed, the defendant raised a

different claim of ineffective assistance of counsel in his

first motion for a new trial and in his direct appeal. Thus, as

the motion judge determined, the claim is waived. See

Commonwealth v. Duguay, 492 Mass. 520, 540 (2023) ("If a

defendant fails to raise a claim that is generally known and

available at the time of trial or direct appeal or in the first

motion for postconviction relief, the claim is waived" [citation

omitted]).

Despite her determination that the present claim was

waived, the motion judge nonetheless reviewed the issue to

determine whether the alleged error created a substantial risk

of a miscarriage of justice. She first determined that there

was no credible evidence that trial counsel's "advice in

connection with the plea offer fell measurably below that

expected from ordinary defense counsel." She found that the

defendant's affidavit was self-serving and failed to include any

4 We are not persuaded by the defendant's suggestion that
his prior appellate counsel likewise rendered ineffective
assistance by failing to raise the present claim of trial
counsel's ineffective assistance in the defendant's first motion
for a new trial or in his direct appeal.

6
details regarding any conversation he had with trial counsel

about the plea offer.5 See Commonwealth v. Vaughn, 471 Mass.

398, 405 (2015); Commonwealth v. Marrero, 459 Mass. 235, 240-241

(2011). She further found that "[i]t appears that [the

defendant] rejected the plea offer based not on inadequate

advice but on his firm belief that the Commonwealth was covering

up mistakes it made at trial and his desire to preserve his

right to appeal those mistakes." We discern no error in these

findings.

Even assuming, arguendo, that the defendant satisfied the

first prong of the ineffective assistance test, he has

nonetheless failed to satisfy the prejudice prong of the test.6

The record shows that the trial judge was reticent, if not

unwilling, to entertain the Commonwealth's plea offer, and he

was not required to do so. See Commonwealth v. Ramos-Cabrera,

486 Mass. 364, 366 (2020) (judge afforded wide discretion in

determining whether to accept guilty plea). See also

5 We note that, at the hearing on the motion to vacate, the
judge offered the defendant the opportunity to testify, but he
declined the offer.

6 The defendant cites no persuasive authority for his claim
that trial counsel was ineffective for failing -- immediately
after the jury returned its verdict -- to identify and advise
him of any viable appellate issues and the likelihood of success
on any such issues. The argument is even more problematic where
the defendant's first appeal centered, in part, on the claim
that trial counsel rendered ineffective assistance.

7
Commonwealth v. Marinho, 464 Mass. 115, 129 (2013) ("To

establish prejudice on account of counsel's deficient

performance in the plea context . . . the defendant must

demonstrate a reasonable probability that the prosecution would

have made an offer, that the defendant would have accepted it,

and that the court would have approved it"). Thus, the claim

rests, in part, on a speculative foundation.

Furthermore, we disagree with the defendant's claim that

the trial judge was unaware that a waiver of appellate rights in

connection with a plea agreement is permissible. As noted by

the motion judge, the trial judge appeared to express his

personal view regarding "the desirability of waiving appellate

rights" as part of a plea deal. The claim is speculative at

best. See Marinho, 464 Mass. at 129 ("[p]roof of

prejudice . . . cannot be based on mere conjecture or

speculation as to outcome" [citation omitted]). Regardless, we

discern no prejudice where, prior to the trial judge's comments

regarding the Commonwealth's plea offer, trial counsel for the

defendant stated that he had discussed the offer with the

defendant who "[did] not want to go forward" with the plea and

"[did] not want [to] waive his appellate rights." In such

circumstances, the motion judge was warranted in concluding that

the trial judge's comment had not "tainted the proceedings."

8
In short, the defendant chose to forego the possibility of

accepting a plea offer that required him to serve up to fifteen

years in prison and waive his appellate rights. The record

reflects that he was unwilling to do so. Having exercised those

appellate rights and having not prevailed, he claimed for the

first time -- sixteen years after trial -- that he did not

understand the ramifications of his decision based on trial

counsel's purported ineffective assistance. On the record

before us, we cannot say that the motion judge abused her

discretion in denying this belated claim.

Order denying motion to
vacate habitual offender
convictions affirmed.

By the Court (Massing,
Neyman & Wood, JJ.7),

Clerk

Entered: June 30, 2025.

7 The panelists are listed in order of seniority.

9