Conviction upheld despite counsel’s failure to seek plea

The Supreme Judicial Court has affirmed the first-degree murder conviction of a defendant who claimed that his trial counsel ignored his instruction to explore with the prosecutor the possibility of pleading guilty to second-degree murder.

“At issue is whether the defendant was deprived of his constitutional right to effective counsel when his attorney allegedly ignored his request to initiate plea negotiations with the prosecutor. We conclude that a claim of ineffective assistance of counsel may be established where a defendant shows both that it was unreasonable in the circumstances for the attorney to ignore the defendant’s request to explore the possibility of a plea bargain and that prejudice resulted from the attorney’s failure to heed the defendant’s reasonable request,” Justice Gabrielle R. Wolohojian wrote for the SJC.

For prejudice to be established, the defendant would need to show that the prosecutor and judge were reasonably likely to accept the proposed plea, and that the missed opportunity to reach a plea deal resulted in “a conviction of more serious charges or the imposition of a more severe sentence,” Wolohojian wrote.

“Here, accepting that the defendant instructed his trial counsel to explore with the prosecutor the possibility of pleading guilty to murder in the second degree and that such a plea was reasonable in the circumstances of this case, and further accepting that trial counsel ignored that instruction, we nonetheless discern no error in the denial of the defendant’s motion for a new trial because the defendant failed to show a reasonable probability that the prosecutor would have entertained a stand-alone plea from the defendant in this multidefendant case. We accordingly affirm the denial of the defendant’s motion for a new trial,” she wrote.

“The motion judge did not abuse his discretion in concluding that the defendant failed to meet his burden to show prejudice because, although the prosecutor would have considered a pretrial offer to plead guilty to murder in the second degree, his willingness depended on both the defendant and the codefendant being willing to so plead. The prosecutor’s unwillingness to accept a partial disposition in this multidefendant case had several bases, including that the defendant’s value as a witness against the codefendant was diminished by the defendant’s inconsistent statements to police, and that a partial resolution would not spare the victim’s family from the trauma of trial. Although the prosecutor was willing to accept and recommend a pretrial resolution in which both the defendant and the codefendant would plead guilty to murder in the second degree, that scenario never presented itself because the codefendant was unwilling to plead guilty to murder in the second degree until the second week of trial. And, by that time, the prosecutor was unwilling to accept such a disposition because the victim’s family had already been put through the trial. On this record, the motion judge did not err in concluding that ‘there was never a realistic probability that the defendant could have pleaded to second degree murder,’ nor did the judge abuse his discretion in denying the motion for a new trial,” the justice added.

The 25-page decision is Commonwealth v. Mosso, Lawyers Weekly No. 10-129-25.