Commonwealth v. David J. Vieira.

• Court: Massachusetts Appeals Court
• Decided: February 5, 2024
• Docket: 23-P-0033
• Status: Unpublished

Opinion

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-33

COMMONWEALTH

vs.

DAVID J. VIEIRA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2009, following a jury trial, the defendant was

convicted of trafficking in over 200 grams of cocaine and

sentenced to from fifteen to eighteen years in State prison. On

May 4, 2011, a panel of this court affirmed the defendant's

conviction. See Commonwealth v. Vieira, 79 Mass. App. Ct. 1115

(2011). Twelve years after his conviction, in 2021, the

defendant filed a motion for a new sentencing hearing, claiming

that he received ineffective assistance of counsel because his

trial counsel failed to adequately prepare an argument for

sentencing and failed to provide evidence of mitigating

circumstances. The motion judge denied the defendant's motion

without an evidentiary hearing. This appeal followed. We

vacate the order denying the motion for a new sentencing hearing and remand the matter for further proceedings consistent with

this memorandum and order.

In his direct appeal in 2011, the defendant did not allege

any ineffectiveness with regards to deficiency in counsel's

sentencing preparation or argument. Nor did he raise the issue

in his motion to revise and revoke his sentence in light of the

Supreme Judicial Court's holding in Commonwealth v. Galvin, 466

Mass. 286 (2013). The trial judge, who decided that motion,

resentenced the defendant to a term of no less than twelve years

and no more than eighteen years in State prison.

The defendant filed his first motion for new trial in 2016.

Although the defendant argued that he received ineffective

assistance of counsel, he did so on a different ground, namely

conflict of interest between himself and trial counsel. The

trial judge denied the defendant's motion. The defendant did

not allege any ineffectiveness with regards to deficiency in

counsel's sentencing preparation or argument. A panel of this

court affirmed the denial of the motion for new trial. See

Commonwealth v. Vieira, 92 Mass. App. Ct. 1123 (2018). Then, in

2021, the defendant filed his motion for a new sentencing

hearing based on ineffective assistance of trial counsel which

is the subject of this appeal. A second judge denied the motion

by order dated January 14, 2022.

2 "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." Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000).

Here, nothing in the record suggests that the defendant's

argument was unavailable at the time of his direct appeal in

2011, or at the time of his first motion for postconviction

relief in 2016. Where the defendant failed to raise the

argument of ineffective assistance of counsel for failing to

prepare for sentencing or to mitigate his sentence in a timely

fashion, the arguments typically are waived. See id. See also

Mains v. Commonwealth, 433 Mass. 30, 33-34 (2000). Our review,

however, does not end there. We still review an otherwise

waived claim "to determine whether [any] error gives rise to a

substantial risk of a miscarriage of justice." Commonwealth v.

Russell, 439 Mass. 340, 345 (2003).

Here, the motion judge's written denial of the defendant's

motion for resentencing did not address the defendant's

contention that he was prejudiced by his counsel's lack of

advocacy regarding sentencing. After his jury trial, the judge

sentenced the defendant to from fifteen to eighteen years in

State prison. Although the judge originally imposed a minimum

mandatory sentence of fifteen years, the judge could have set

the maximum sentence as low as fifteen years and one day, and as

3 high as twenty years. See G. L. c. 94C, § 32E (b) (4), as

appearing in St. 1988, c. 124. The defendant's trial counsel,

however, made minimal argument as to the upper end of his

potential sentence, simply asking the judge to impose a sentence

of from fifteen years to fifteen and one day without stating any

reasons why such a sentence would be appropriate. Trial counsel

also presented no mitigating information in an effort to

persuade the judge to give a lower maximum sentence. The

defendant argues that trial counsel should have informed the

judge that "when Mr. Vieira was six years old, he returned home

from camp one day to find his mother murdered by his father."

It is possible that if counsel had offered mitigating

information at sentencing, the trial judge may not have

sentenced the defendant to the portion of the sentence exceeding

fifteen years. See Commonwealth v. Lykus, 406 Mass. 135, 146

(1989); Commonwealth v. Cameron, 31 Mass. App. Ct. 928, 930

(1991). Indeed, in the defendant's unrelated Federal case in

which the judge was informed of this information, the judge

agreed that the "psychological and emotional injury caused by

the murder of his mother" mitigated the defendant's criminal

culpability.

The motion judge who heard the defendant's 2021 motion for

a new sentencing hearing made no finding whether effective

advocacy regarding mitigation at sentencing would have affected

4 the maximum sentence the defendant received in 2009. Without

substantive findings from the motion judge as to both the

effectiveness of trial counsel's sentencing argument and

potential prejudice from trial counsel's failure to mention

relevant mitigating information, we are not equipped to review

the defendant's claim. See Commonwealth v. Williams (No. 1), 68

Mass. App. Ct. 287, 290-291 (2007). We are thus compelled to

remand the matter for further findings and rulings on the

defendant's claim that his attorney provided ineffective

assistance by failing to present mitigating information at

sentencing and, if so, whether the defendant was prejudiced in

any way.

We vacate the order dated January 14, 2022, denying the

motion for a new sentencing hearing and remand the matter for

further proceedings consistent with this memorandum and order.

We express no opinion as to the merits of the defendant's claim.

On remand, the judge may consider whether an evidentiary hearing

is necessary to address the defendant's claim of prejudice

5 because of ineffective sentencing advocacy and failure to

provide mitigation.

So ordered.

By the Court (Wolohojian, Milkey & D'Angelo, JJ.1),

Assistant Clerk

Entered: February 5, 2024.

1 The panelists are listed in order of seniority.