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-1263
COMMONWEALTH
vs.
DANIEL MULKERN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On November 16, 2017, a grand jury indicted the defendant
for (1) trafficking between one hundred grams and two hundred
grams of oxycodone, in violation of G. L. c. 94C § 32E (c);
(2) trafficking between eighteen grams and thirty-six grams of
cocaine, in violation of G. L. c. 94C § 32E (b); (3) possession
of heroin with intent to distribute, in violation of G. L.
c. 94C § 32 (a), subsequent offense; (4) possession of a class B
substance (MDMA) with intent to distribute, in violation of
G. L. c. 94C § 32A (a), subsequent offense; and (5) possession
of a class B substance (fentanyl) with intent to distribute, in
violation of G. L. c. 94C § 32A (a). At a May 1, 2019 jury-
waived trial, a Superior Court judge found the defendant guilty of count one of the indictment, guilty of lesser included
offenses on counts two through four,1 and not guilty of count
five. The judge sentenced the defendant on count one to from
eight to ten years in State prison, on count two to five years
of probation to run from and after the sentence on count one,
and on counts three and four to one-year committed to run
concurrently with the sentence on count one. The defendant then
moved for a new trial, arguing that he received ineffective
assistance of counsel because his attorney misadvised him about
the likelihood of prevailing at trial, which caused the
defendant to reject three different plea offers. The motion
judge, who was not the trial judge, denied the motion without an
evidentiary hearing, concluding that while defense counsel's
exercise in judgment turned out to be wrong, it was not
constitutionally ineffective. The defendant appeals.2 We
affirm.
Discussion. A judge may grant a motion for a new trial
"only 'if it appears that justice may not have been done.'"
Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992), quoting
1 The subsequent portions of counts three and four were dismissed.
2 We note that in this consolidated appeal of his judgments of conviction and the order denying his motion for new trial, the defendant presents arguments solely with respect to the denial of his motion for new trial.
2 Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). "Where, as
here, the motion judge was not the trial judge and the evidence
provided was purely documentary, our review is de novo."
Commonwealth v. Watt, 493 Mass. 322, 328 (2024), citing
Commonwealth v. Lykus, 451 Mass. 310, 326, (2008).
Counsel is ineffective when "(1)'there has been serious
incompetency, inefficiency, or inattention of counsel --
behavior of counsel falling measurably below that which might be
expected from an ordinary fallible lawyer'; and (2) as a result,
the defendant was 'likely deprived . . . of an otherwise
available, substantial ground of defence.'" Commonwealth v.
Henley, 488 Mass. 95, 134 (2021), quoting Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). The defendant has the burden
of proving an ineffective assistance of counsel claim.
Commonwealth v. Montez, 450 Mass. 736, 755 (2008).
The constitutional entitlement to the effective assistance
of counsel in a criminal proceeding "plainly includes counsel's
effective assistance in connection with the defendant's decision
whether to accept or reject a plea bargain offer made by the
Commonwealth." Commonwealth v. Mahar, 442 Mass. 11, 14 (2004).
"In considering claims based on the incompetence of the legal
advice bearing on the likelihood of acquittal, a court must be
acutely aware of the temptation of a defendant to second guess
his decision and counsel's advice in light of subsequent adverse
3 events." Id. at 17. "[A] defense attorney's simple misjudgment
as to the strength of the prosecution's case, the chances of
acquittal, or the sentence a defendant is likely to receive upon
conviction, among other matters involving the exercise of
counsel's judgment, will not, without more, give rise to a claim
of ineffective assistance of counsel" (citation omitted). Id.
"Judicial scrutiny of counsel's performance must be highly
deferential, 'indulg[ing] a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance.'" Commonwealth v. Florentino, 396 Mass. 689, 690
(1986), quoting Strickland v. Washington, 466 U.S. 668, 669
(1984).
Here, the defendant argues that his representation was
constitutionally deficient because defense counsel overestimated
the chances of success at trial by comparing the likelihood of
success to a "'jump ball' in a basketball game, meaning that the
outcome could go either way and was as likely to be favorable as
it was to be unfavorable." The defendant claims that the
chances of success were, in fact, near zero, and his attorney's
assessment caused him to reject three plea offers that were more
favorable than the sentence that the defendant ultimately
received following his jury-waived trial.3 See Mahar, 442 Mass.
3 The three plea offers were as follows: (1) from eight years to eight years and one day in State prison with two years
4 at 14 (holding right to counsel includes right to assistance in
deciding whether to accept plea offer).
Defense counsel's guidance in the defendant's decision to
accept the Commonwealth's plea offers fell "within the wide
range of reasonable professional assistance." Florentino, 396
Mass. at 690, quoting Strickland, 466 U.S. at 669. Defense
counsel's trial strategy was to argue that the police were
rogue, and the police witnesses' accounts of the defendant's
arrest were not credible, a strategy that offered the defendant
the possibility of acquittal on all charges. Although the
defendant's unsuccessful motion to suppress also hinged on
attacking the credibility of police witnesses, the seasoned
defense attorney had reason to believe that strategy could very
well prevail at the jury-waived trial. First, defense counsel
identified a new witness to the arrest whose account
contradicted the police's account. Second, defense counsel's
informed experience with the trial judge, who did not preside
over the motion to suppress, led defense counsel to believe the
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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-1263
COMMONWEALTH
vs.
DANIEL MULKERN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On November 16, 2017, a grand jury indicted the defendant
for (1) trafficking between one hundred grams and two hundred
grams of oxycodone, in violation of G. L. c. 94C § 32E (c);
(2) trafficking between eighteen grams and thirty-six grams of
cocaine, in violation of G. L. c. 94C § 32E (b); (3) possession
of heroin with intent to distribute, in violation of G. L.
c. 94C § 32 (a), subsequent offense; (4) possession of a class B
substance (MDMA) with intent to distribute, in violation of
G. L. c. 94C § 32A (a), subsequent offense; and (5) possession
of a class B substance (fentanyl) with intent to distribute, in
violation of G. L. c. 94C § 32A (a). At a May 1, 2019 jury-
waived trial, a Superior Court judge found the defendant guilty of count one of the indictment, guilty of lesser included
offenses on counts two through four,1 and not guilty of count
five. The judge sentenced the defendant on count one to from
eight to ten years in State prison, on count two to five years
of probation to run from and after the sentence on count one,
and on counts three and four to one-year committed to run
concurrently with the sentence on count one. The defendant then
moved for a new trial, arguing that he received ineffective
assistance of counsel because his attorney misadvised him about
the likelihood of prevailing at trial, which caused the
defendant to reject three different plea offers. The motion
judge, who was not the trial judge, denied the motion without an
evidentiary hearing, concluding that while defense counsel's
exercise in judgment turned out to be wrong, it was not
constitutionally ineffective. The defendant appeals.2 We
affirm.
Discussion. A judge may grant a motion for a new trial
"only 'if it appears that justice may not have been done.'"
Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992), quoting
1 The subsequent portions of counts three and four were dismissed.
2 We note that in this consolidated appeal of his judgments of conviction and the order denying his motion for new trial, the defendant presents arguments solely with respect to the denial of his motion for new trial.
2 Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). "Where, as
here, the motion judge was not the trial judge and the evidence
provided was purely documentary, our review is de novo."
Commonwealth v. Watt, 493 Mass. 322, 328 (2024), citing
Commonwealth v. Lykus, 451 Mass. 310, 326, (2008).
Counsel is ineffective when "(1)'there has been serious
incompetency, inefficiency, or inattention of counsel --
behavior of counsel falling measurably below that which might be
expected from an ordinary fallible lawyer'; and (2) as a result,
the defendant was 'likely deprived . . . of an otherwise
available, substantial ground of defence.'" Commonwealth v.
Henley, 488 Mass. 95, 134 (2021), quoting Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). The defendant has the burden
of proving an ineffective assistance of counsel claim.
Commonwealth v. Montez, 450 Mass. 736, 755 (2008).
The constitutional entitlement to the effective assistance
of counsel in a criminal proceeding "plainly includes counsel's
effective assistance in connection with the defendant's decision
whether to accept or reject a plea bargain offer made by the
Commonwealth." Commonwealth v. Mahar, 442 Mass. 11, 14 (2004).
"In considering claims based on the incompetence of the legal
advice bearing on the likelihood of acquittal, a court must be
acutely aware of the temptation of a defendant to second guess
his decision and counsel's advice in light of subsequent adverse
3 events." Id. at 17. "[A] defense attorney's simple misjudgment
as to the strength of the prosecution's case, the chances of
acquittal, or the sentence a defendant is likely to receive upon
conviction, among other matters involving the exercise of
counsel's judgment, will not, without more, give rise to a claim
of ineffective assistance of counsel" (citation omitted). Id.
"Judicial scrutiny of counsel's performance must be highly
deferential, 'indulg[ing] a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance.'" Commonwealth v. Florentino, 396 Mass. 689, 690
(1986), quoting Strickland v. Washington, 466 U.S. 668, 669
(1984).
Here, the defendant argues that his representation was
constitutionally deficient because defense counsel overestimated
the chances of success at trial by comparing the likelihood of
success to a "'jump ball' in a basketball game, meaning that the
outcome could go either way and was as likely to be favorable as
it was to be unfavorable." The defendant claims that the
chances of success were, in fact, near zero, and his attorney's
assessment caused him to reject three plea offers that were more
favorable than the sentence that the defendant ultimately
received following his jury-waived trial.3 See Mahar, 442 Mass.
3 The three plea offers were as follows: (1) from eight years to eight years and one day in State prison with two years
4 at 14 (holding right to counsel includes right to assistance in
deciding whether to accept plea offer).
Defense counsel's guidance in the defendant's decision to
accept the Commonwealth's plea offers fell "within the wide
range of reasonable professional assistance." Florentino, 396
Mass. at 690, quoting Strickland, 466 U.S. at 669. Defense
counsel's trial strategy was to argue that the police were
rogue, and the police witnesses' accounts of the defendant's
arrest were not credible, a strategy that offered the defendant
the possibility of acquittal on all charges. Although the
defendant's unsuccessful motion to suppress also hinged on
attacking the credibility of police witnesses, the seasoned
defense attorney had reason to believe that strategy could very
well prevail at the jury-waived trial. First, defense counsel
identified a new witness to the arrest whose account
contradicted the police's account. Second, defense counsel's
informed experience with the trial judge, who did not preside
over the motion to suppress, led defense counsel to believe the
of probation from and after his release; (2) from five and one- half years to seven years in State prison with three years of probation from and after his release; and (3) a minimum of seven years in State prison with three years of probation from and after his release. The trial judge sentenced the defendant to from eight to ten years in State prison with five years of probation from and after his release.
5 judge would be receptive to a trial strategy attacking the
credibility of the police witnesses.
Though the defense did not succeed at trial, counsel's
assessment in no way fell to the level of ineffective
assistance, especially when counsel advised the defendant before
trial that there was as much chance that the strategy would fail
as that it would succeed. See Mahar, 442 Mass. at 17 ("a court
must be acutely aware of the temptation of a defendant to second
guess his decision and counsel's advice in light of subsequent
adverse events"). In fact, the decision to waive a jury trial
appears to have been modestly successful. With regard to counts
two through four, the judge sua sponte found the defendant
guilty of lesser included offenses. The judge also found the
defendant not guilty on count five because he believed it was
inappropriate to convict the defendant for two substantive
charges based on possession of a single packet of mixed
substances -- an argument not advanced by defense counsel. And
although the committed sentence of from eight to ten years and a
five-year term of probation somewhat exceeded any of the plea
offers made to the defendant, the sentence is much closer to the
sentences contemplated in the plea offers than the thirty-year
maximum exposure the defendant was facing on count one alone.
Because defense counsel had reasons to believe the trial
strategy could succeed and communicated to the defendant that
6 the strategy might fail, we are not convinced that defense
counsel made a "misjudgment as to . . . the chances of
acquittal," let alone mistakes that would rise to the level of
ineffective assistance of counsel. Mahar, 442 Mass. at 17. We
therefore agree with the motion judge's conclusion that the
defendant failed to establish that defense counsel was
constitutionally ineffective.4
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Blake, C.J., Desmond & Singh, JJ.5),
Clerk
Entered: October 15, 2025.
4 Because the knowable facts relevant to the ineffective assistance of counsel claim are undisputed, we also decline to remand for an evidentiary hearing. See Commonwealth v. Goodreau, 442 Mass. 341, 348-349 (2004) ("If the theory of the motion, as presented by the papers, is not credible or not persuasive, holding an evidentiary hearing to have the witnesses repeat the same evidence . . . will accomplish nothing").
5 The panelists are listed in order of seniority.