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
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.