Commonwealth v. Samuel Ward.

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-113

COMMONWEALTH

vs.

SAMUEL WARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2012, pursuant to a plea agreement, the defendant,

Samuel Ward, admitted to sufficient facts to warrant an

adjudication as a youthful offender on three counts related to a

violent drug-dealing incident. Nine years later, after he was

charged with new offenses and arraigned as an armed career

criminal under G. L. c. 269, § 10G (a), he moved to withdraw his

guilty plea. He claimed, inter alia, that his plea was not

knowing and intelligent because he was not informed by the judge

or his plea counsel that he could potentially face such future

sentencing enhancements. The motion judge, who also presided

over his original plea and sentencing hearing, denied the motion

without an evidentiary hearing. We affirm.

Background. In December 2011, while at a marijuana

dealer's apartment to buy drugs, the then sixteen year old
defendant produced a handgun from his pocket and used the handle

of the weapon to club the dealer in the head between fifteen and

twenty-five times. The victim and another eyewitness cooperated

with the police investigation and testified before the grand

jury. The defendant was indicted as a youthful offender on one

count each of armed home invasion, G. L. c. 265, § 18C, assault

and battery with a dangerous weapon (ABDW), G. L. c. 265, § 15A,

and armed robbery, G. L. c. 265, § 17.

With the advice of his appointed counsel, the defendant

accepted a plea agreement and was adjudicated a youthful

offender. The defendant's presentence report disclosed that he

was a special education student with social and emotional

deficits, substance abuse issues, attention deficit

hyperactivity disorder, and behavioral health problems. The

judge conducted a colloquy with the defendant during his plea

hearing in March 2012 and found that the defendant knowingly,

intelligently, and voluntarily waived his rights. The judge

failed, however, to inform the defendant on the record of the

mandatory minimum and maximum possible sentences that he could

face, as was required by Mass. R. Crim. P. 12 (c) (3), as

appearing in 442 Mass. 1511 (2004).1

1 The rule has since been amended several times, but the
requirement remains in place. See Mass. R. Crim. P. 12 (c) (3)
(A) (ii), as amended, 489 Mass. 1501 (2022). References to rule
12 herein are to the 2004 version unless otherwise noted.

2
During the sentencing portion of the hearing, the victim

gave an impact statement saying that he thought the defendant

"should be going away." The judge then sentenced the defendant,

on the armed home invasion and armed robbery adjudications, to

the recommended five years commitment to the Department of Youth

Services (DYS). The judge determined, however, with the

defendant's assent, that probation on the ABDW adjudication

would begin immediately, rather than upon release from his DYS

commitment (as was recommended), and would terminate on the

recommended date in 2021, thus lasting for nine years.

In 2016, while still on probation, the defendant was

arrested and arraigned as an armed career criminal (ACC) under

G. L. c. 269, § 10G (a), with the 2012 adjudications serving as

the predicate offenses.2 He was found to be in violation of the

terms of his probation on the ABDW adjudication and was

sentenced to two years in the house of correction.

In March 2021, the defendant filed a "motion to withdraw

his guilty plea and motion for a new trial," arguing that plea

counsel was ineffective in 2012 in failing to inform the

defendant that the victim and the other eyewitness, because of

2 The ACC statute, G. L. c. 269, § 10G (a), enhances the sentence
for anyone, "having been previously convicted of a violent crime
or of a serious drug offense," who unlawfully carries or
possesses a firearm or ammunition under G. L. c. 269, § 10 (a),
(c), or (h).

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their involvement in the drug deal, might have invoked their

privilege against self-incrimination had the defendant's case

gone to trial. The defendant also claimed that his decision to

accept the plea agreement was not made knowingly or

intelligently, because of the combined failure of the judge and

plea counsel to mention the minimum and maximum sentences and

"any different or additional punishment for subsequent

offense[s]," including future ACC charges. Mass. R. Crim. P. 12

(c) (3). The judge denied the motion without an evidentiary

hearing, and the defendant filed this appeal.

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. Furr, 454 Mass. 101, 106 (2009). A judge may

grant a motion for a new trial "only 'if it appears that justice

may not have been done'" (citation omitted). Id. We review the

judge's decision for "a significant error of law or other abuse

of discretion," giving particular deference when, as here, the

motion judge was also the plea judge. Commonwealth v. Scott,

467 Mass. 336, 344 (2014), quoting Commonwealth v. Sherman, 451

Mass. 332, 334 (2008). We reverse an order denying such a

motion only when the decision is "manifestly unjust" or the

proceeding "was infected with prejudicial constitutional error"

(citation omitted). Furr, supra. "This strict standard . . .

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promotes judicial efficiency and finality by discouraging a

defendant from entering a guilty plea 'to test the weight of

potential punishment' . . . only to seek to withdraw the plea

later when adverse consequences appear, especially consequences

not even contemplated at the time of the plea." Commonwealth v.

Lopez, 426 Mass. 657, 662–663 (1998).

"[T]he judge may decide a rule 30 (b) motion based solely

on affidavits; may discredit untrustworthy affidavits . . . and

need only proceed to evidentiary hearing 'where a substantial

issue is raised [by the motion or affidavits] and is supported

by a substantial evidentiary showing'" (citation omitted).

Lopez, 426 Mass. at 663. We review the motion judge's decision

not to hold an evidentiary hearing for abuse of discretion. See

Commonwealth v. Goodreau, 442 Mass 341, 348 (2004). We accept

the judge's findings of fact unless clearly erroneous and his

credibility determinations as final. See Scott, 467 Mass. at

344.

2. Ineffective assistance of counsel. The defendant argues

that plea counsel was ineffective in failing to advise him (1)

that the victim and eyewitness would likely assert their

privilege against self-incrimination and thus be unavailable to

testify at trial and (2) that his adjudication could serve as a

predicate for a future ACC sentencing enhancement. In an

affidavit accompanying his motion for a new trial, the defendant

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asserted that "[a]t no point prior to . . . taking [his] plea

did [plea counsel] have a conversation with [him] about the

Fifth Amendment privilege," and, had counsel told him that the

victim and eyewitness could have claimed the privilege, he would

have "elected to set the matter for trial" instead of taking the

plea agreement. He also stated that the fact "that the charges

to which [he] was pleading could serve as the basis for a later

charge as an armed career criminal . . . would have been

important information for [him] to have in deciding how [he]

wished to resolve [his] case," but that plea counsel "never

mentioned anything specific about guns and certainly never

mentioned the term 'armed career criminal.'"

For his part, plea counsel indicated that his files on the

defendant's case had already been destroyed as a matter of

routine, but that he had a partial record of communicating with

the defendant and the defendant's parents, before the defendant

accepted the plea agreement, about "future consequences, direct

and collateral, for violation of [probation]." Counsel also had

a specific memory of discussing with the defendant "the

potential for consequences of his plea affecting other aspects

of his life, [including] potential unknown consequences due to

the felony conviction," such as "enhanced penalties . . . [for]

future gun [violent crimes] and drug offenses." Finally,

counsel represented that it was his "general practice to explain

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to all clients what evidence may, and may not, get introduced

should the case proceed to trial," but that he had no specific

memory of discussing the victim's or witness's self-

incriminating testimony with the defendant. The judge generally

credited the plea counsel's representations (as set forth in the

affidavit of the defendant's appellate counsel) and discredited

the defendant's affidavit.

To prevail on a claim of ineffective assistance of counsel,

a defendant must establish that counsel's performance fell

"measurably below that which might be expected from an ordinary

fallible lawyer" and "likely deprived the defendant of an

otherwise available, substantial ground of defense."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "Where a new

trial is sought based on a claim of ineffective assistance of

counsel, the burden of proving ineffectiveness rests with the

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

a. Witnesses' privilege against self-incrimination. The

defendant argues on appeal that the judge should have held an

evidentiary hearing to determine whether plea counsel actually

advised the defendant about the possibility that the witnesses

could decline to testify, as counsel's statements did not

directly contradict the defendant's assertion that the topic was

never discussed.

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Regardless whether such a conversation actually occurred --

and the judge below seemed to find that it did -- we agree with

the judge that, because it was so speculative that the witnesses

would have invoked their privilege, the defendant failed to meet

his burden to demonstrate that he was "likely deprived . . . of

an otherwise available, substantial ground of defense."

Saferian, 366 Mass. at 96. The two witnesses, despite the

incriminating circumstances, had already cooperated with the

police investigation and testified to the grand jury, where they

could have asserted their privilege if they thought it

necessary. See United States v. Washington, 431 U.S. 181, 186

(1977). Moreover, the victim, apparently spurred by his desire

to see the defendant punished, voluntarily appeared and spoke in

open court at sentencing, moments after his role in the drug

deal was read into the record. Although the victim was not

asked about the incriminating circumstances, his statement

evinces the unlikelihood of his claiming the privilege had he

been called to testify at trial. Contrary to the defendant's

argument on appeal, the likelihood that the witnesses could have

claimed the privilege is not the same as the likelihood that

they would have done so.3 The Fifth Amendment to the United

3 At oral argument the defendant suggested a new basis for
finding prejudice based on counsel's advice. The defendant
argued that, had he been advised of the mere possibility that

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States Constitution "does not preclude a witness from testifying

voluntarily in matters which may incriminate him, . . . for

those competent and free willed to do so may give evidence

against the whole world, themselves included" (quotations and

citation omitted). Washington, supra at 186-187.

b. Future ACC charges. The defendant also argues that the

judge erred in rejecting his claim that he received ineffective

assistance where plea counsel did not advise him about the

possibility of future ACC charges. We are unpersuaded.

First, the motion judge found that the defendant was, in

fact, advised about enhanced sentences for future drug and gun

crimes. Based as it was on plea counsel's specific memory, this

finding was not clearly erroneous.

Second, the judge correctly concluded that no such warning

was required in order for the defendant to receive

the witnesses could have invoked their privilege, he would have
rejected the plea agreement, moved forward to trial, attempted
to determine if the witnesses would indeed invoke their
privilege, and, if they would not, offered to accept the plea
agreement anew. This speculative scenario was not set forth in
the defendant's affidavit, or in the memorandum in support of
his "motion to withdraw his guilty plea and motion for a new
trial," or even in his appellate brief. The Commonwealth has
had no opportunity to respond to it with evidentiary material or
written argument, and the motion judge made no findings about
it. The prejudice argument the defendant made to the motion
judge was simply that, had he been properly advised, he would
have proceeded to trial and "the case would likely have been
dismissed on that [trial] date." Thus we decline to consider
further the defendant's new argument on this record.

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constitutionally adequate assistance of counsel. The defendant

relies on professional standards published by bar organizations

to support the proposition that his attorney should have advised

him about future ACC charges. Although there may well be wisdom

in such recommendations, "[p]revailing norms of practice as

reflected in American Bar Association standards and the like

. . . are [only] guides to determining what is reasonable."

Strickland v. Washington, 466 U.S. 668, 688 (1984). The Supreme

Judicial Court has rejected the argument that "a failure to

advise a defendant of all possible collateral consequences

results in constitutionally ineffective assistance."

Commonwealth v. Henry, 488 Mass. 484, 497 (2021). This includes

a failure to advise of "possible future sentencing enhancements

should [the defendant] be convicted of another crime," id.,

which are contingent on the defendant's own future conduct.

3. Plea colloquy. Finally, the defendant contends that

his plea colloquy was constitutionally inadequate because the

judge failed to inform him, on the record in open court, of (1)

the mandatory minimum and maximum possible sentences for the

crimes to which he admitted, and (2) the possibility that he

could face future ACC sentence enhancements. He argues that

these omissions are especially prejudicial in light of his age

and cognitive limitations, which prevented him from

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understanding the long-term consequences of his plea. The

argument is unavailing.

It is true that rule 12 (c) (3) (B), as then in effect,

required the judge to inform the defendant of the mandatory

minimum and maximum possible sentences for the crimes to which

he admitted, including in particular for the ABDW charge for

which he received probation, and the record is clear that no

such warning was issued to the defendant in court. The same

requirement is in effect today. See note 1, supra. See

generally Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 579

(2001) (where defendant sentenced to straight probation, warning

about minimum and maximum sentences he could receive if he

violated probation was appropriate). However, "[w]e will not

assume that the defendant's plea was involuntary and unknowing

and say as a matter of law that justice was not done simply

because the record reflects noncompliance with rule 12." Id. at

580. Instead, we ask "whether compliance with rule 12 would

have made a difference in the decision of the defendant to plead

guilty." Id.

We accept the judge's determination below that the

defendant did not present "plausible evidence that, if fully

informed, he would have preferred to go to trial" and risk the

twenty-year mandatory minimum sentence for the armed home

invasion charge if found guilty, rather than the possible ten-

11
year sentence he could have faced on the ABDW charge if he

violated probation. See Commonwealth v. Murphy, 73 Mass. App.

Ct. 57, 67-69 (2008); Rodriguez, 52 Mass. App. Ct. at 581-583.

Indeed, the judge's conclusion is supported by the defendant's

own affidavit, in which (as mentioned supra) the defendant

claimed only that the maximum sentence "would have been

important information to have," not that it would have changed

his mind about accepting the agreement. The judge's

determination is also bolstered by the very favorable

disposition offered in the agreement, the multi-year delay

between the disposition and the filing of the motion, the fact

that the motion was filed only after the defendant faced ACC

charges as a result of the adjudications, and the absence of any

assertion of factual innocence or of a viable defense. See

Murphy, supra. Thus the failure to inform the defendant of the

minimum and maximum sentences for ABDW did not invalidate the

plea.

Much the same reasoning applies to the failure to warn the

defendant about future ACC charges. Even if the language of

rule 12 did require such a warning, as the defendant contends,4

4 Rule 12 (c) (3) (B), as then in effect, required the judge to
inform the defendant of "any different or additional punishment
based upon subsequent offense . . . provisions of the General
Laws, if applicable." Accord Mass. R. Crim. P. 12 (c) (3) (A)
(ii) (a), as amended, 489 Mass. 1501 (2022). The defendant

12
we would still agree that the omission made no difference to the

defendant's decision to admit to the charges. This is

especially true where the judge found that plea counsel told the

defendant about potential future sentencing enhancements, and so

the defendant would have had actual knowledge of the possibility

even without the judge's warning.

Because we agree that neither of the omissions in the

colloquy made a difference to the defendant's decision to admit

to sufficient facts, we need not address his claim that his age

and cognitive limitations hindered his ability to enter a

knowing and intelligent plea with those consequences in mind.

We note, however, that the judge was aware of those limitations

before the colloquy; that the defendant was well-acquainted with

the criminal justice system (having appeared before the same

judge on twenty-four different occasions); that the defendant's

parents were present at his plea; and that he was represented by

able counsel at all stages of the case. See Commonwealth v.

Russell, 37 Mass. App. Ct. 152, 157 (1994), cert. denied, 513

asserts that this language refers to the potential for future
sentencing enhancements, on future offenses, if the defendant
pleads guilty, not just those enhancements which will be applied
to the sentence on the pending charges. Because we agree that
such information would not have changed the defendant's
decision, we need not consider whether his interpretation is
correct.

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U.S. 1094 (1995) (considering similar circumstances in affirming

order denying motion for new trial).

Order denying motion for new
trial affirmed.

By the Court (Sacks, Shin &
D'Angelo, JJ.5),

Clerk

Entered: July 7, 2023.

5 The panelists are listed in order of seniority.

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