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
22-P-1114
COMMONWEALTH
vs.
TIFFANY CIPROTTI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order that denied her motion
to withdraw her plea of guilty to operating under the influence
of intoxicating liquor (second offense). The thrust of the
defendant's argument is that she received ineffective assistance
of counsel at the plea stage, because defense counsel did not
advise her that she had a "complete defense" to a different
charge that she was then facing -- for operating without a
mandated ignition interlock device. The interlock charge would
have carried a mandatory minimum sentence of six months in jail,
and was dismissed at the time the defendant made the plea at
issue.
We affirm the denial of the motion to withdraw the plea.
Background. The defendant was stopped by a State trooper
while driving at 2:10 A.M. on January 16, 2020, in the city of Leominster. The defendant did not have a driver's license, and
had not had a driver's license since 2011. The officer reported
that the defendant's eyes were glassy and bloodshot, and that
her speech was slurred. The trooper noticed a strong odor of
alcohol emanating from the defendant's breath. On exiting the
car, the defendant was unsteady on her feet, and was holding
onto the car for balance. The trooper administered field
sobriety tests, and formed the opinion that the defendant was
under the influence.
The defendant was charged with (1) unlicensed operation of
a motor vehicle, G. L. c. 90, § 10; (2) operating under the
influence of liquor (third offense), G. L. c. 90, § 24 (1) (a)
(1); and (3) operating without an ignition interlock, G. L.
c. 90, § 24S (a). In February 2022, the defendant pleaded
guilty, after a colloquy with a District Court judge, to
unlicensed operation of a motor vehicle and operating under the
influence of liquor (amended to second offense). The
Commonwealth dismissed the ignition interlock charge as part of
the negotiated plea. During the plea colloquy –- the propriety
of which is not challenged –- the defendant affirmed the truth
of the facts stated above. The defendant also testified that
she had had sufficient time to speak with her attorney prior to
pleading guilty, and that she was satisfied with his advice.
The judge also inquired of defense counsel, who confirmed that
2 he had reviewed with the defendant the elements of the various
charges, the maximum penalties, and the defendant's possible
defenses. The defendant was sentenced to six months in the
house of correction, suspended for two years of probation, and
was ordered to complete an inpatient treatment program, to
abstain from alcohol, and to comply with alcohol testing.
Four months later, in June of 2022, the defendant filed the
motion for new trial at issue, seeking to set aside her guilty
plea. The defendant argued that she had received ineffective
assistance of counsel, because counsel had incorrectly advised
her that she had "no defense" to the operating without an
ignition interlock charge. The defendant contended that, to the
contrary, she had a complete defense to that charge because she
was not a licensed driver, and thus could not be guilty under
G. L. c. 90, § 24S, because that crime required that she had
operated a vehicle "while" she was a licensed operator required
to have such a device. See Commonwealth v. Pettit, 83 Mass.
App. Ct. 401 (2013). The defendant asserts that counsel's error
was material, because had she known that she could not be
convicted of the interlock charge, she would have gone to trial
on the operating under the influence charge.
The defendant submitted three affidavits in support of her
motion –- hers, her mother's, and defense counsel's. The
defendant's affidavit set forth the contentions listed above
3 about the advice she received from defense counsel, and the
defendant's mother's affidavit stated that she also had been
present during the meetings with defense counsel, and
corroborated the defendant's affidavit. Defense counsel's
affidavit stated, in relevant part, that "[o]ver the life of the
case and on the day of trial, [he] believed that [the defendant]
had a viable defense" to all three charges, but that, "after
advising [the defendant] of the defenses . . ., she decided to
tender a guilty plea." Defense counsel's affidavit thus appears
to contradict the defendant's affidavit, at least in part, by
indicating that he believed the defendant had an (unspecified)
defense to the interlock claim, and that he had advised her of
that defense.
The District Court judge (the same judge that had taken the
plea) denied the defendant's motion. The judge noted that he
"credit[ed] the [a]ffidavit of [defense counsel] where he
instructed the defendant that she had a viable defense(s) to the
charge of [o]peration without an [i]gnition [i]nterlock, but
that the defendant voluntarily pleaded guilty nonetheless."
This appeal followed.
Discussion. A motion to withdraw a guilty plea is treated
as a motion for new trial under Mass R. Crim. P. 30 (b), as
appearing in 435 Mass. 1501 (2001), and is to be allowed only
"if it appears that justice may not have been done." See
4 Commonwealth v. Rodriguez, 467 Mass. 1002, 1004 (2014). We
review the denial of such a motion for abuse of discretion or
other error of law. See id. Where, as here, the judge who
denies the motion for new trial is the same judge who took the
guilty plea, we pay "[p]articular deference . . . to the rulings
of [the] motion judge." See Commonwealth v. Lastowski, 478
Mass. 572, 575 (2018).
A defendant asserting ineffective assistance of counsel
must meet a two-part test. First, "a defendant must show that
. . . the 'behavior of counsel [fell] measurably below that
which might be expected from an ordinary fallible lawyer,'" and
second, that "counsel's poor performance 'likely deprived the
defendant of an otherwise available, substantial ground of
defence'" -- that is, that the defendant was "prejudice[d]"
(citations omitted). Lastowski, 478 Mass. at 575-576. The
thrust of the defendant's appeal is that the judge abused his
discretion here, because (she asserts) "there was no actual
dispute as to trial counsel's failure to advise the [defendant]
of an available, likely successful legal defense to 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
22-P-1114
COMMONWEALTH
vs.
TIFFANY CIPROTTI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order that denied her motion
to withdraw her plea of guilty to operating under the influence
of intoxicating liquor (second offense). The thrust of the
defendant's argument is that she received ineffective assistance
of counsel at the plea stage, because defense counsel did not
advise her that she had a "complete defense" to a different
charge that she was then facing -- for operating without a
mandated ignition interlock device. The interlock charge would
have carried a mandatory minimum sentence of six months in jail,
and was dismissed at the time the defendant made the plea at
issue.
We affirm the denial of the motion to withdraw the plea.
Background. The defendant was stopped by a State trooper
while driving at 2:10 A.M. on January 16, 2020, in the city of Leominster. The defendant did not have a driver's license, and
had not had a driver's license since 2011. The officer reported
that the defendant's eyes were glassy and bloodshot, and that
her speech was slurred. The trooper noticed a strong odor of
alcohol emanating from the defendant's breath. On exiting the
car, the defendant was unsteady on her feet, and was holding
onto the car for balance. The trooper administered field
sobriety tests, and formed the opinion that the defendant was
under the influence.
The defendant was charged with (1) unlicensed operation of
a motor vehicle, G. L. c. 90, § 10; (2) operating under the
influence of liquor (third offense), G. L. c. 90, § 24 (1) (a)
(1); and (3) operating without an ignition interlock, G. L.
c. 90, § 24S (a). In February 2022, the defendant pleaded
guilty, after a colloquy with a District Court judge, to
unlicensed operation of a motor vehicle and operating under the
influence of liquor (amended to second offense). The
Commonwealth dismissed the ignition interlock charge as part of
the negotiated plea. During the plea colloquy –- the propriety
of which is not challenged –- the defendant affirmed the truth
of the facts stated above. The defendant also testified that
she had had sufficient time to speak with her attorney prior to
pleading guilty, and that she was satisfied with his advice.
The judge also inquired of defense counsel, who confirmed that
2 he had reviewed with the defendant the elements of the various
charges, the maximum penalties, and the defendant's possible
defenses. The defendant was sentenced to six months in the
house of correction, suspended for two years of probation, and
was ordered to complete an inpatient treatment program, to
abstain from alcohol, and to comply with alcohol testing.
Four months later, in June of 2022, the defendant filed the
motion for new trial at issue, seeking to set aside her guilty
plea. The defendant argued that she had received ineffective
assistance of counsel, because counsel had incorrectly advised
her that she had "no defense" to the operating without an
ignition interlock charge. The defendant contended that, to the
contrary, she had a complete defense to that charge because she
was not a licensed driver, and thus could not be guilty under
G. L. c. 90, § 24S, because that crime required that she had
operated a vehicle "while" she was a licensed operator required
to have such a device. See Commonwealth v. Pettit, 83 Mass.
App. Ct. 401 (2013). The defendant asserts that counsel's error
was material, because had she known that she could not be
convicted of the interlock charge, she would have gone to trial
on the operating under the influence charge.
The defendant submitted three affidavits in support of her
motion –- hers, her mother's, and defense counsel's. The
defendant's affidavit set forth the contentions listed above
3 about the advice she received from defense counsel, and the
defendant's mother's affidavit stated that she also had been
present during the meetings with defense counsel, and
corroborated the defendant's affidavit. Defense counsel's
affidavit stated, in relevant part, that "[o]ver the life of the
case and on the day of trial, [he] believed that [the defendant]
had a viable defense" to all three charges, but that, "after
advising [the defendant] of the defenses . . ., she decided to
tender a guilty plea." Defense counsel's affidavit thus appears
to contradict the defendant's affidavit, at least in part, by
indicating that he believed the defendant had an (unspecified)
defense to the interlock claim, and that he had advised her of
that defense.
The District Court judge (the same judge that had taken the
plea) denied the defendant's motion. The judge noted that he
"credit[ed] the [a]ffidavit of [defense counsel] where he
instructed the defendant that she had a viable defense(s) to the
charge of [o]peration without an [i]gnition [i]nterlock, but
that the defendant voluntarily pleaded guilty nonetheless."
This appeal followed.
Discussion. A motion to withdraw a guilty plea is treated
as a motion for new trial under Mass R. Crim. P. 30 (b), as
appearing in 435 Mass. 1501 (2001), and is to be allowed only
"if it appears that justice may not have been done." See
4 Commonwealth v. Rodriguez, 467 Mass. 1002, 1004 (2014). We
review the denial of such a motion for abuse of discretion or
other error of law. See id. Where, as here, the judge who
denies the motion for new trial is the same judge who took the
guilty plea, we pay "[p]articular deference . . . to the rulings
of [the] motion judge." See Commonwealth v. Lastowski, 478
Mass. 572, 575 (2018).
A defendant asserting ineffective assistance of counsel
must meet a two-part test. First, "a defendant must show that
. . . the 'behavior of counsel [fell] measurably below that
which might be expected from an ordinary fallible lawyer,'" and
second, that "counsel's poor performance 'likely deprived the
defendant of an otherwise available, substantial ground of
defence'" -- that is, that the defendant was "prejudice[d]"
(citations omitted). Lastowski, 478 Mass. at 575-576. The
thrust of the defendant's appeal is that the judge abused his
discretion here, because (she asserts) "there was no actual
dispute as to trial counsel's failure to advise the [defendant]
of an available, likely successful legal defense to the
interlock charge." The premise of this argument is incorrect,
because as noted above, defense counsel averred that he did
advise the defendant that she had a defense to the interlock
charge, and the judge credited that averment in denying the
motion. But here we need not rest our decision on defense
5 counsel's averment, because in any event, the defendant did not
satisfy her burden of showing prejudice.
To prevail, the defendant needed to show not only
ineffective assistance by her lawyer, but also that, but for the
lawyer's failure, there is a "reasonable probability" that the
"result of the proceeding would have been different" (citation
omitted). Commonwealth v. Clarke, 460 Mass. 30, 46 (2011).
Here, that burden required the defendant to show at least (1)
that if properly advised, she would have gone to trial on the
operating under the influence charge,1 and (2) that doing so
would have been "rational under the circumstances," because she
had an "available, substantial ground of defence" (citations
omitted). Id. Cf. Commonwealth v. Millien, 474 Mass. 417, 432
(2016) ("defense is 'substantial' . . . where we have a serious
doubt whether [a] jury verdict would have been the same had the
defense been presented").
The defendant, however, has not addressed why it would have
been rational for her to proceed to trial on the operating under
the influence charge, where the charge was a "third offense,"
which also carried a mandatory minimum jail sentence. G. L.
c. 90, § 24 (1) (a) (1). The evidence recited by the
1 The defendant does not mention the driving without a license charge, but the defendant had no chance of prevailing as to that charge. The premise of her defense to the interlock charge is that she did not have a license.
6 Commonwealth was quite strong –- the defendant was stopped late
at night, had alcohol on her breath, admitted to having one
drink, could not navigate outside the car without holding onto
it, and apparently failed the field sobriety tests. The
defendant does not address any of this evidence in her brief;
indeed, the police report as to the field sobriety tests is not
included in the record. The defendant thus has not shown that
she had a defense and that it would have been rational for her
to go to trial, when doing so would have risked mandatory jail
time that was avoided by her guilty plea to the reduced charge.
Under the circumstances, even if the defendant had shown
ineffective assistance of counsel (and we do not hold that she
did), the defendant failed to meet her burden to show prejudice,
and we thus discern no abuse of discretion in the denial of her
motion. See, e.g., Lastowski, 478 Mass. at 579 (no abuse of
discretion in denial of motion to withdraw plea where defendant
failed to show prejudice); Commonwealth v. Gilbert, 94 Mass.
App. Ct. 168, 179 (2018) (motion to withdraw plea properly
denied where case against defendant was strong and "nothing
7 beyond [defendant's] affidavit . . . suggest[ed] the defendant
would not have pleaded guilty but for counsel's conduct").
Order denying motion for a new trial affirmed.
By the Court (Henry, Desmond & Englander, JJ.2),
Clerk
Entered: June 15, 2023.
2 The panelists are listed in order of seniority.