Commonwealth v. Kevin M. Tynan.

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-50

COMMONWEALTH

vs.

KEVIN M. TYNAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was charged by separate complaints with two

counts of breaking and entering a building in the nighttime with

the intent to commit a felony, four counts of vandalism, and one

count of larceny from a building. The defendant entered a plea

agreement whereby he admitted to sufficient facts as to all

counts charged, was found guilty of larceny from a building and

one count of breaking and entering in the nighttime with the

intent to commit a felony, was sentenced, and served his

sentence; but later he filed motions to withdraw his admissions.

A judge of the District Court, who was also the plea judge,

denied an evidentiary hearing and denied the motions to withdraw

the pleas. For the reasons that follow, we affirm.

Factual Background. We summarize the relevant facts based

on the uncontested evidence included in various applications for
search warrants. On November 4, 2018, Vermont police officers

discovered a break-in at Pownal Elementary School in Pownal and

that medication was stolen. Similarly, on November 12, 2018, in

the nearby western Massachusetts town of Clarksburg, police

officers discovered that the garage had been broken into at

Clarksburg Elementary and that someone had attempted to break

into the school.

Back in Vermont, on Sunday, November 18, 2018, police

officers discovered that someone had again broken into the

Pownal Elementary School. Surveillance video footage revealed

that the suspect was driving a tan colored sedan. The footage

also revealed the suspect was carrying a red satchel and wearing

a red hooded sweatshirt, brown shoes, and a white mask. That

same day, in nearby Stamford, Vermont, the Stamford Elementary

School was broken into and a safe from the principal's office

was taken. The next day, officers discovered that Clarksburg

Elementary, which is across the border from Stamford, Vermont,

had been broken into and prescription medication from the

nurse's office had been stolen.

On November 21, 2018, officers conducted a property check

at Walter B. Howard Elementary School in New Lebanon, New York

at around 5 A.M. When they arrived, they saw an unoccupied 2003

Buick Century parked by the dumpsters behind the school, which

they determined was registered to David Tynan of North Adams,

2
Massachusetts. Officers found that the school had been broken

into, that a pry bar was used to force open several classroom

doors and the nurse's office, and that cabinets and medicine

lockers were ransacked. Surveillance video footage showed an

individual wearing a red hooded sweatshirt and similar shoes to

the individual spotted on surveillance video footage at the

break-in at the Pownal Elementary School in Vermont.

After checking both the North Adams police department's

records and the Registry of Motor Vehicles' records,

Massachusetts officers discovered that the defendant and David

Tynan were brothers. Because David Tynan did not have a

criminal record and the defendant had a criminal record that

included charges for breaking and entering, larceny from a

building, and obtaining prescription narcotics by fraudulent

means, the defendant became the target of the investigation.

Additionally, because the registration for the defendant's

vehicle had been revoked, the investigating officers believed

that the defendant might be using his brother's vehicle.

Based on all of this information, North Adams police

officers obtained a search warrant to place a global positioning

system (GPS) tracking device on the 2003 Buick Century

registered to David Tynan. Investigation revealed three

potential residences for the defendant, one of which,

specifically 52 George Avenue in North Adams, Massachusetts, was

3
also a listed residential address for David Tynan. Although

officers went to each of these locations in the hopes of finding

the 2003 Buick Century, the vehicle was not located within the

allotted fifteen-day period, and the search warrant was returned

unexecuted.

At around 4 A.M. on December 2, 2018, Molly Stark

Elementary in Bennington, Vermont was broken into. The nurse's

office was targeted and medications belonging to students were

stolen. Surveillance video footage showed an individual walking

around the school wearing a red hooded sweatshirt, a dark

colored jacket, tan pants, brown shoes, a brown knit hat, and a

dark cloth covering the face. Based on the information from

this most recent break-in, officers renewed their search for the

2003 Buick Century registered to David Tynan.

On December 3, 2018, Sergeant Albert Zoito went to 27 Wall

Street, North Adams, Massachusetts: one of the potential

residential addresses for the defendant. The address was a

three-family apartment building with a driveway along its

southern side that connected to Wall Street. The property had a

detached five-bay garage at the end of the driveway, which could

be seen from the street.1 Sergeant Zoito walked down the

1 The officer noted that they believed that there was no
expectation of privacy in this driveway area, in part because
people visiting the apartment and other apartment owners might

4
driveway and, while looking through windows on the doors of the

detached garage with his flashlight, located the 2003 Buick

Century. Officers received a new search warrant to enter the

garage based on this information2 and placed a GPS device on the

2003 Buick Century registered to David Tynan.

Based on information from the GPS device, officers were

able to track the vehicle on December 15, 2018, going to Hoosick

Falls Junior/Senior High School in Hoosick Falls, New York and

stopping in the parking lot. The vehicle was later tracked

driving past the Cambridge Central School in Cambridge, New York

and stopping behind the school. New York officers then located

the 2003 Buick Century on a street directly behind the Cambridge

Central School.

utilize the driveway. The officer's subjective belief about
whether a reasonable expectation of privacy existed is not
relevant to our analysis. See Commonwealth v. Comenzo, 489
Mass. 155, 159 (2022) (subjective component of analysis relates
to individual).

2 This warrant was also based on an officer-conducted
inquiry into information publicly posted on Facebook, which
revealed that the defendant's profile stated he was living in
North Adams. They also located a profile for the defendant's
mother, which listed her most recent employment as a nurse with
Williamstown Elementary School and BART Charter Public School,
located in Williamstown and Adams, Massachusetts, respectively.
This led officers to believe that the defendant might have
gained knowledge from his mother of school nurse offices and
medication locations. North Adams police also had learned of
three 2014 school break-ins and medication thefts in
Massachusetts that had involved the defendant. Given the path
of our analysis and our conclusions below, this additional
support is largely irrelevant to our discussion.

5
The New York police officers, after hearing a loud banging

sound coming from behind the school, saw the defendant driving

the 2003 Buick Century and pulled him over. They then searched

him and located two blue latex gloves in his pocket. Officers

also found a small container with pills that were identified as

Ritalin. After obtaining a search warrant to search the

vehicle, the officers found flashlights, numerous pairs of

gloves, Clonazepam pills, powdered morphine, and the safe that

had been stolen from Stamford Elementary School inside the

vehicle. The safe door had been pried open and was being held

together by black duct tape. The officers also found index

cards that contained both directions to Cambridge Elementary

School and Hoosick Falls Junior/Senior High School and

information about how to avoid detection and where to find items

in the schools, such as pills and a Keurig coffee maker.

Back in Massachusetts, police officers also obtained and

executed a search warrant on 27 Wall Street, where they found

and seized brown dress shoes, a white Apple iPhone, an iPad, a

red notebook, and prescription medication bottles.3

Additionally, officers later identified a Keurig coffee maker

stolen from the Pownal Elementary School in the photographs

3 Officers also located and photographed black duct tape,
but did not tag or seize it. Duct tape had been used by the
individual who broke into Stamford Elementary School on November
18, 2018, to hold a window together.

6
taken during the execution of that search warrant. Based on

this information, officers obtained and executed another search

warrant for 27 Wall Street and found and seized the Keurig

coffee maker. The officers also obtained a search warrant for

the contents of the defendant's iPhone and iPad.

Procedural Background. The defendant pleaded guilty in New

York to breaking into the Cambridge Central School and the

Walter B. Howard Elementary School as well as possessing the

stolen safe from the Stamford Elementary School. After having

served his ten-month sentence, the defendant was transferred to

Columbia County Jail in Hudson, New York, where he was held for

an additional six weeks. At no point during his incarceration

in New York did the defendant receive any substance use

treatment. At this time, the defendant still had pending

charges in Vermont and Massachusetts.

The defendant's attorney for the cases in Massachusetts

negotiated a plea deal for the defendant to serve eighteen

months in the house of correction -- which his attorney believed

would be necessary for the defendant to participate in the

Residential Substance Abuse Treatment (RSAT) program, a six-

month intensive substance use program only offered to people

serving more than a twelve-month sentence -- with a period of

probation afterwards. After the defendant admitted to

sufficient facts for a finding of guilty of all charges and was

7
found guilty of two of them, his defense counsel asked that the

defendant be placed in the RSAT program at the Berkshire County

house of correction. The defendant was sentenced on the two

convictions to eighteen months in the house of correction with

an RSAT recommendation; probation was not imposed, and the rest

of the charges were continued without a finding for eighteen

months and then dismissed.

On May 31, 2022, in each case, the defendant filed an

identical motion to withdraw his admissions to sufficient facts.

The motion judge, who was also the plea judge, denied the

motions without an evidentiary hearing after finding that trial

counsel was not ineffective in her representation and that her

advice about parole was collateral. The defendant now appeals.

Discussion. We treat the defendant's motions to withdraw

his pleas as a motion for a new trial pursuant to Mass. R. Crim.

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

Commonwealth v. Resende, 475 Mass. 1, 12 (2016). Rule 30 (b)

authorizes a judge to grant a new trial at any time if it

appears that justice may not have been done. "As a general

matter, [a] motion for a new trial is addressed to the sound

discretion of the judge, . . . and an appellate court will

examine the motion judge's conclusion only to determine whether

there has been a significant error of law or other abuse of

discretion" (quotations omitted). Commonwealth v. Watkins (No.

8
1), 486 Mass. 801, 804 (2021). Where, as here, the motion judge

was also the plea judge, we give special deference to the

judge's findings of fact and ultimate decision. Commonwealth v.

Corey, 493 Mass. 674, 684 (2024).

The defendant argues that the motion judge erred in denying

his motions to withdraw his pleas because his trial counsel was

ineffective. "Where a motion for a new trial is based on

ineffective assistance of counsel, the defendant bears the

burden of proving entitlement to a new trial by showing that the

behavior of counsel fell below that of an ordinary, fallible

lawyer and that such failing 'likely deprived the defendant of

an otherwise available, substantial ground of defence.'"

Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting

Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). In this

context, he must show "a reasonable probability that, but for

counsel's errors, he would not have pleaded guilty and would

have insisted on going to trial," and "he must convince the

court that a decision to reject the plea bargain would have been

rational under the circumstances" (quotation and citation

omitted). Commonwealth v. DeJesus, 468 Mass. 174, 183 (2014).

The defendant argues, as he did below, that his counsel was

ineffective for failing to investigate whether the evidence

obtained as a result of Sergeant Zoito's observations from the

driveway of 27 Wall Street and the GPS device might be

9
suppressed. He also argues his counsel was ineffective in

giving him incorrect advice regarding his potential eligibility

for parole release. The motion judge reasoned that counsel was

not ineffective for failing to file a motion to suppress because

any such motion would have been unsuccessful. Additionally, the

judge stated that advice concerning parole rendered by counsel

was not ineffective because it only concerned collateral

consequences. We address each of the defendant's arguments in

turn before discussing the defendant's final argument, that the

judge was required to hold an evidentiary hearing regarding his

motions.

1. Failure to investigate or file motion to suppress. "In

cases where tactical or strategic decisions of the defendant's

counsel are at issue, we conduct our review with some deference

to avoid characterizing as unreasonable a defense that was

merely unsuccessful" (citation omitted). Commonwealth v.

Kolenovic, 471 Mass. 664, 673 (2015). The Commonwealth argues

that defense counsel's inaction in evaluating whether to file a

motion to suppress was a tactical decision and should be

reviewed as such. Put plainly, the record does not support this

interpretation.

Trial counsel's affidavit made it clear that she "did not

review or obtain copies of any search warrants issued," and

accordingly did not consider whether a motion to suppress might

10
have been viable. Defense counsel instead only considered the

strength of the Commonwealth's case and believed that getting

the defendant into RSAT, which required at least twelve months

of incarceration, would delay the defendant's extradition to

Vermont, where treatment was not available, and would allow the

defendant to receive treatment and be in the best position for

his Vermont cases. Because trial counsel did not review the

search warrants or consider suppression, this inaction should

not be considered a strategic decision or reviewed as such.

Therefore, whatever consideration defense counsel gave to the

strength of the Commonwealth's case and the pending status of

the Vermont cases is not considered in the analysis.

We also agree with the defendant that "[t]he failure of

counsel to litigate a viable claim of an illegal search and

seizure is a denial of the defendant's Federal and State

constitutional right to the effective assistance of counsel."

Comita, 441 Mass. at 90, quoting Commonwealth v. Pena, 31 Mass.

App. Ct. 201, 204, 207 (1991). To withdraw his pleas, however,

the defendant must also show, among other things, that such a

motion would have been granted. See Commonwealth v. Fulgiam,

477 Mass. 20, 29 (2017).

11
The defendant argues that because the driveway4 from which

Sergeant Zoito approached the garage was within the curtilage of

the residence, any investigative encroachment on it without a

warrant was unconstitutional. "The Supreme Court has held that

an area is within the curtilage of a residence only when it is

'so intimately tied to the home itself' that 'an individual

reasonably may expect that the area in question [will] be

treated as the home itself.'" Commonwealth v. McCarthy, 428

Mass. 871, 874 (1999), quoting United States v. Dunn, 480 U.S.

294, 300, 301 (1987). Courts consider four factors when

deciding whether an area is within the curtilage of a home:

"(1) the proximity of the area to the home, (2) whether the area

is included within an enclosure surrounding the home, (3) the

nature of the uses to which the area is put, and (4) the steps

taken by the resident to protect the area from observations by

people passing by." McCarthy, supra. "The determination as to

whether a particular area is within or outside the curtilage is

generally a mixed question of fact and law." United States v.

Mumme, 985 F.3d 25, 40 (1st Cir. 2021).

4 Although the defendant argues in his brief that "the
backyard" was within the curtilage of his residence, he uses the
term "backyard" inconsistently -- in some places to include the
driveway but in others to refer to an area adjacent to the
driveway. Because there is no evidence from the search warrant
affidavit or otherwise that Sergeant Zoito walked on any area
other than the driveway, the judge would have focused on whether
the driveway itself was within the curtilage.

12
Nothing in this record persuades us that the judge erred or

abused his discretion when he concluded that, presented with a

motion to suppress, he would have found that the 117-foot

driveway, including the portion immediately in front of the

garage, was not within the curtilage of the residence. While

the factors are not mechanically applied and there is no bright

line rule regarding driveways of shared housing, see

Commonwealth v. Fernandez, 458 Mass. 137, 143 (2010), the

outcome in this case is clear, as the judge explained. The

search warrant affidavit; the defense investigator's affidavit,

diagram, and photographs; and the defendant's own affidavit

submitted with his motions show that the driveway was not

proximate to the defendant's third-floor apartment, that little

if any of the space was "included within an enclosure

surrounding the home" in any meaningful sense of that phrase,5

that the space was used by others, presumably also residents of

the three-family apartment building, and that the defendant took

no steps to protect the space from observation. Compare id. at

144 (driveway of multifamily apartment was within curtilage

where defendant lived on first floor apartment of "three-family

home," driveway was "the width of one vehicle and the length of

5 The most "enclosed" part of the driveway was the portion
in front of the garage; that portion was not only the furthest
from the house but was "enclosed" in part by vegetation
separating it from the grassy yard behind the house.

13
two," none of the other apartments had access to driveway, no

one seeking to enter home would traverse driveway, and only

defendant's vehicle was seen within driveway).6 As the driveway

was not within the curtilage of the defendant's apartment, the

observations made by the officer were constitutional under the

"plain view" doctrine. See Commonwealth v. A Juvenile (No. 2),

411 Mass. 157, 160 (1991) (no unconstitutional search where

police officers entered private driveway and inspected exterior

of car without warrant). Accordingly, the judge did not err or

abuse his discretion by finding that trial counsel was not

ineffective for failing to research this issue or attempt to

litigate it.7

6 For similar reasons we are unpersuaded by the defendant's
suggestion that the garage was within the curtilage of his home.
The search warrant affidavit averred that (1) the garage
contained three vehicles unrelated to the investigation (and,
inferably, not owned by the defendant); and (2) the door to the
garage bay containing the Buick Century was not secured by a
remote garage door opener and was not separated from the other
bays by any internal dividers or other barriers to observation.
Compare Commonwealth v. Sanchez, 89 Mass. App. Ct. 249, 251-252
(2016) (shed in yard was part of curtilage of third-floor
apartment where defendant rented it from building owner,
restricted access to it by means of padlock placed on its door,
and enjoyed exclusive use of it compared to residents of other
apartments). We add that we do not read the affidavit to mean
that Sergeant Zoito, if he opened the garage door at all, did so
before observing the Buick Century through the garage door
window.

7 The defendant also suggested to the motion judge, in a
one-sentence footnote, that a motion to suppress would have been
successful because he had a reasonable expectation of privacy in

14
2. Counsel's advice regarding parole. While discussing

the defendant's possibility of being eligible for parole if the

defendant tendered a plea, defense counsel advised the defendant

that she believed the defendant "was virtually certain to

receive parole after half the committed sentence."8 We agree

with the defendant that this advice was incorrect because the

defendant's circumstances created a presumption against release.

120 Code Mass. Regs. § 300.04(2) (2017) ("The presence of a

. . . warrant indicating that the inmate is wanted to answer

other criminal charges . . . creates a strong presumption

against parole release. . . . A pending criminal case will also

create a like presumption against parole release").

"Generally, under Massachusetts law, defense counsel's

failure to inform a defendant of collateral or contingent

consequences of a plea does not render a plea involuntary"

(citation omitted). Commonwealth v. Sylvester, 476 Mass. 1, 6

(2016) (rejecting ineffective assistance claim). See

Commonwealth v. Henry, 488 Mass. 484, 497 (2021) (same). To

the garage bay assigned to him, and thus any search of that bay
without a warrant was unconstitutional. Although the
Commonwealth counters this argument in its brief, it does not
appear that the defendant is raising this argument on appeal.

8 The Commonwealth does not contend that these statements
were not made. It also seems implicit in the motion judge's
findings that he credited defense counsel's affidavit and found
that this advice was actually given to the defendant.

15
support a claim of ineffective assistance in the context of

incorrect legal advice during plea negotiations, the advice must

relate to issues which are not collateral, such as the risk of

deportation. See Padilla v. Kentucky, 559 U.S. 356, 369 (2010);

Sylvester, supra. The question before us is thus whether the

judge erred or abused his discretion when he concluded that plea

counsel's incorrect advice concerning the likelihood of the

defendant being released after serving one-half of his committed

sentence related to a collateral or contingent consequence of

the admissions to sufficient facts and did not render them

involuntary. We hold that the judge did not err or abuse his

discretion.

In Commonwealth v. Stanton, 2 Mass. App. Ct. 614, 621-622

(1974), we confronted a very similar issue when a defendant

claimed his counsel had incorrectly advised him that he "would

be out of jail in a short time." In that case we held that

"such predictions by counsel as to the time which a defendant

might have to serve . . . form no basis for attacking a plea,"

because the details of parole and of the defendant's chances for

an early release are "contingent consequences of being confined"

(citation omitted).9 While the legal landscape of this area of

9 Parole may be thought of as "contingent" because its grant
or denial turns in part on the discretionary decision of a board
that is not subject to the direct control of the sentencing
court or the parties.

16
the law changed somewhat after Padilla was decided, this logic

still rings true for, and our holding in Stanton still applies

to, parole. See Henry, 488 Mass. at 497.

In Commonwealth v. Cepulonis, 9 Mass. App. Ct. 302, 308-309

(1980), S.C., 384 Mass. 495 (1981), counsel advised the

defendant he would be eligible for parole in eighteen months

when in reality the defendant would be eligible for parole after

serving at least forty months. Despite this mistake, we

concluded that "counsel's inaccurate prediction as to parole

eligibility cannot provide a basis for the relief requested by

the defendant." Id. at 310. We focused on the facts that the

defendant had some experience with confinement and the parole

system, that he was expressly advised of the maximum sentence

for each offense, and that his counsel explained that the

sentencing judge was not bound by the prosecutor's

recommendations. Id. However, we did acknowledge that there

could be a case in which the validity of the plea "might be

affected by manifestly erroneous advice as to the time of

confinement given to a defendant by his counsel." Id.

The defendant argues that this case presents the type of

exception in which ineffective assistance of counsel can be

found because counsel "affirmatively provide[d] erroneous advice

on a collateral issue and the defendant relie[d] upon that

advice in tendering a plea." But the judge rejected this claim,

17
and on this record, his decision was not outside the range of

reasonable alternatives. The defendant had already served a

sentence in New York, where he did not receive treatment, and

had charges with which he "was particularly concerned" pending

against him in Vermont, where he would not receive treatment,

when he pleaded guilty in Massachusetts to two crimes out of the

seven with which he was charged in exchange for an eighteen-

month sentence in a house of correction where he would likely

receive treatment. If the defendant believed that he would be

released to the community after serving nine months as he now

claims, the belief was not reasonable, the judge found, given

the pendency of the Vermont charges. The judge was the final

arbiter on matters of credibility. Commonwealth v. Scott, 467

Mass. 336, 344 (2014). A viable defense to the Massachusetts

charges was not identified in the rule 30 (b) motions beyond the

police officers' allegedly unconstitutional intrusions on the

defendant's privacy to collect evidence; and under oath at the

plea colloquy, the defendant stated that his admissions were

"not the result of force or threats, promises, or other

assurances." These responses "matter greatly," and the judge

was entitled to rely on them. Commonwealth v. Hiskin, 68 Mass.

App. Ct. 633, 638-639 (2007). The defendant cites no binding

precedent to support the argument that counsel's incorrect

advice standing alone is sufficient to render an otherwise

18
knowing and voluntary plea invalid, and our cases suggest it is

not. See Commonwealth v. Santiago, 394 Mass. 25, 30 (1985)

(judge's failure to inform defendant of parole consequences did

not invalidate pleas, because "limitations on, or requirements

for, parole . . . are but contingent consequences of being

confined" [quotation and citation omitted]); Commonwealth v.

Indelicato, 40 Mass. App. Ct. 944, 945 (1996) ("Mistaken advice

as to parole eligibility . . . has been held not to vitiate the

basis for a plea").

3. Evidentiary hearing. Finally, the defendant argues

that the motion judge abused his discretion in failing to

conduct an evidentiary hearing. The motion judge had the

authority to decide the motions "on the basis of the facts

alleged in the affidavits without further hearing if no

substantial issue is raised by the motion or affidavits." Mass.

R. Crim. P. 30 (c) (3). Doing so does not deprive a defendant

of due process rights. See Lykus v. Commonwealth, 432 Mass.

160, 163 (2000). We "defer to the sound discretion of the judge

below whether a motion for postconviction relief requires a

hearing," id., and only reverse if we conclude that the judge

abused that discretion. Commonwealth v. Amaral, 482 Mass. 496,

509 (2019).

To determine whether an issue is substantial, we consider

"both the seriousness of the issue itself and the adequacy of

19
the defendant's showing" (citation omitted). Commonwealth v.

Marrero, 459 Mass. 235, 240 (2011). Here, the affidavits

accurately described and outlined the entire factual basis for

the defendant's ineffective assistance of counsel claim. The

parties do not disagree regarding any of the underlying facts

that we view as material to the claim. It is unclear what

information an evidentiary hearing would have produced for the

judge's consideration where the Commonwealth agreed to the

underlying facts as the defendant described them. See

Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 395 (2012) ("An

evidentiary hearing may not be necessary, however, if the

substantial issue raised is solely a question of law, or if the

facts are undisputed in the record"). Holding, as we do, that

none of the claimed issues merit a new trial, those same issues

do not require us to override the discretion of the motion judge

20
not to hold an evidentiary hearing. Accordingly, we affirm his

decision.

Order denying motions to
withdraw guilty pleas
affirmed.

By the Court (Sacks, Singh &
Walsh, JJ.10),

Assistant Clerk

Entered: May 13, 2024.

10 The panelists are listed in order of seniority.

21