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
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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.