Commonwealth v. Michael H. Page.

• Court: Massachusetts Appeals Court
• Decided: November 7, 2024
• Docket: 23-P-1346
• Status: Unpublished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-1346

COMMONWEALTH

vs.

MICHAEL H. PAGE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 1999, following a jury-waived trial in the Superior

Court, the defendant, Michael H. Page, was convicted of unlawful

possession of a firearm in violation of G. L. c. 269, § 10 (a).

On direct appeal, a panel of this court affirmed the conviction,

concluding that it was supported by sufficient evidence and

defense counsel did not provide ineffective assistance by

failing to raise certain inapplicable statutory exemptions.

Commonwealth v. Page, 56 Mass. App. Ct. 1103 (2002). The

defendant then moved for a new trial pursuant to Mass. R.

Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), raising

the same general arguments. Another panel of this court

affirmed the denial of that motion, observing that the defendant did not "demonstrate any ineffectiveness that deprived him of a

substantial defense or anything material to his defense."

Commonwealth v. Page, 57 Mass. App. Ct. 1112 (2003). In 2022,

the defendant filed a second motion for a new trial, arguing

that he received ineffective assistance because his trial and

appellate counsel did not argue that he held a valid license to

carry. A judge denied that second motion, and the defendant

appealed. We affirm.

We review the denial of a motion for a new trial "for a

significant error of law or abuse of discretion." Commonwealth

v. Sanchez, 100 Mass. App. Ct. 644, 647 (2022). To prevail on a

motion for a new trial based on ineffective assistance of

counsel, the defendant must show that "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," Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974), resulting in a substantial

risk of a miscarriage of justice. See Commonwealth v. Millien,

474 Mass. 417, 432 (2016). Trial counsel's performance also

must have "likely deprived the defendant of an otherwise

available, substantial ground of defence." Saferian, supra.

The defendant argues that he was denied effective

assistance due to trial counsel's failure to present a defense

based on the defendant's allegedly valid license to carry a

2 firearm at the time of his arrest, October 1, 1999. The

defendant argues that trial counsel should have introduced as

evidence a copy of the license, which lists November 20, 2001,

as the expiration date. He also argues that his appellate

counsel was ineffective for not raising the issue in a motion

for a new trial.

It is true that, at the time the defendant was tried, the

holding of a valid license was an affirmative defense to the

prohibition against carrying a firearm. See Commonwealth v.

Gouse, 461 Mass. 787, 802 (2012), abrogated by Commonwealth v.

Guardado, 491 Mass. 666, 689-690, S.C., 493 Mass. 1 (2023),

cert. denied, 144 S. Ct. 2683 (2024). Nevertheless, that

defense was not available to the defendant because, at trial, he

admitted that he did not have a valid license at the time of his

arrest. Asked by his counsel whether his "license to carry had

expired," the defendant responded, "Yes, it did." He testified

that he "held off renewing" the license following his separation

from his wife because he did not know where he was going to

live. The defendant's testimony was consistent with the

prosecutor's finding in a pretrial investigation that the

defendant's license had expired or been revoked before October

1999.

In his 2022 motion, the defendant asserted in an affidavit

that he told trial counsel he had a valid license to carry at

3 the time of his arrest, and he criticized counsel for relying on

the prosecutor's investigative finding and not obtaining a copy

of his license to support his defense. He did not explain,

however, why he testified at trial that he did not have a valid

license. We agree with the judge that this contradiction

renders the defendant's claim of ineffective assistance "neither

logical nor credible." See Commonwealth v. Marinho, 464 Mass.

115, 123 (2013) ("A defendant bears the burden of proof on a

motion for a new trial . . . and a judge is entitled to

discredit affidavits he or she does not find credible"). The

defendant argues that the contradiction was "but one factor to

be considered" in assessing whether his counsel provided

deficient representation, and that counsel's failure to pursue

the issue "denuded him of his only defense." As the judge

observed, however, counsel "would have been ethically

constrained from putting on evidence or arguing to the Court

that [the defendant] held a valid license to carry" given his

unequivocal testimony to the contrary. Further, the record

shows that trial counsel and appellate counsel vigorously

pursued other defenses on the defendant's behalf, including

arguments that his possession of the firearm fell within certain

exceptions to the prohibition in G. L. c. 269, § 10 (a).

Because there is no evidence that either counsel "deprived the

defendant of an otherwise available, substantial ground of

4 defence," Saferian, 366 Mass. at 96, the judge did not err or

abuse his discretion in denying the defendant's motion for a new

trial.1

Order denying motion for a new trial affirmed.

By the Court (Neyman, Singh & Toone, JJ.2),

Clerk

Entered: November 7, 2024.

1 Other claims raised by the defendant do not rise to the level of argument appropriate for judicial review, see Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019), or do not require further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). 2 The panelists are listed in order of seniority.