ineffective assistance of counsel claim in Massachusetts

2026To prevail on an ineffective assistance of counsel claim, the defendant has the burden of showing 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 -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of 9 defence." Commonwealth v. Britto, 433 Mass. 596, 601 (2001), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2026Doe argues that his counsel was ineffective in the Superior Court proceeding for failing to challenge the hearing examiner's application of factors 10, 24, 33, and 38.2 To support an ineffective assistance of counsel claim in the sex offender registry context, the offender 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." Poe v. Sex Offender Registry Bd., 456 Mass. 801, 812 (2010), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2024A claim of ineffective assistance of counsel requires an examination of counsel's performance to determine, first, "whether 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," and, if so, second, "whether it has likely deprived the defendant of 6 an otherwise available, substantial ground of defence." Sorenson, 98 Mass. App. Ct. at 791, quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "[I]n order to prevail on an ineffective assistance of counsel cl

2024Further, "to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful." Commonwealth v. Comita, 441 Mass. 86, 91 (2004).

2025Generally, to prevail on an ineffective assistance of counsel claim a defendant must demonstrate that, but for his counsel's "serious incompetency, inefficiency, or inattention," Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), "the result of the proceeding would have been different." Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), citing Strickland v. Washington, 466 U.S. 668, 694 (1984).

2023The defendant claims that his trial counsel and first appellate counsel were ineffective.2 Generally, to prevail on an ineffective assistance of counsel claim a defendant must demonstrate that, but for his counsel's "serious incompetence, inefficiency, or inattention," Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), "the result of the proceeding would have been different," Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), 1 In a margin notation, the judge denied the motion and wrote "(evidentiary hearing)"; however, the parties agree the hearing was not evidentiary.

2026As the Commonwealth notes in its brief, "if an omission of counsel does not present a substantial risk of a miscarriage of justice . . . , there is no basis for an ineffective assistance of counsel claim under either the Federal or State Constitutions." Commonwealth v. Curtis, 417 Mass. 619 , 624 n.4 (1994). 14 scheduled for a sentencing hearing which took place on May 21, 2021.

2025See Commonwealth v. Curtis, 417 Mass. 619 , 624 n.4 (1994) (explaining that "if an omission of counsel does not present a substantial risk of a miscarriage of justice . . . there is no basis for an ineffective assistance of counsel claim"). b.

2026"Where an ineffective assistance of counsel claim is brought, 'a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'" Commonwealth v. Tavares, 491 Mass. 362 , 366 (2023), quoting Strickland v. Washington, 466 U.S. 668, 691 (1984).

2025Generally, to prevail on an ineffective assistance of counsel claim a defendant must demonstrate that, but for his counsel's "serious incompetency, inefficiency, or inattention," Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), "the result of the proceeding would have been different." Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), citing Strickland v. Washington, 466 U.S. 668, 694 (1984).

2017See Commonwealth v. Holley, 476 Mass. 114, 121 (2016), citing Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014) (“under § 33E *741 review, an ineffective assistance of counsel claim is reviewed under substantial likelihood of miscarriage of justice standard”). 11 Laporte elicited the details of this identification to show the jury that Daniel had only identified Wiggins as one of the intruders because he was distressed about his mother’s death.

2014See Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992).

2018When a defendant bases his ineffective assistance claim on the failure to file an evidentiary motion, the proper question is whether filing the motion "might have accomplished something material for the defense." Commonwealth v. Lally , 473 Mass. 693 , 703 n.10 (2016), quoting from Commonwealth v. Satterfield , 373 Mass. 109 , 115 (1977).

2002See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) (we must determine whether “better work might have accomplished something material for the defense”). “[I]f an omission of counsel does not present a substantial risk of a miscarriage of justice . . . , there is no basis for an ineffective assistance of counsel claim under either the Federal or the State Constitution.” Commonwealth v. Curtis, 417 Mass. 619 , 625 n.4 (1994).

1998L. c. 278, § 33E, which provides a standard more favorable to the defendant than the ineffective assistance of counsel standard we articulated in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), the defendant bears the burden of showing that his counsel’s error was “likely to have unfairly influenced the jury’s verdict.” Commonwealth v. Plant, 417 Mass. 704, 715 (1994).

1994Because the defendant was convicted of murder in the first degree, “[t]he question on appeal is whether, because of an error by defense counsel, the prosecutor or the judge, or for any other reason, there is a substantial likelihood of a miscarriage of justice unless relief is given. . . . [That] standard of review, including an evaluation of trial counsel’s performance, is more favorable to the defendant than the ineffective assistance of counsel test set forth in Commonwealth v. Saferian, [ 366 Mass. 89, 96 (1974)].” Commonwealth v. Plant, 417 Mass. 704, 715-716 (1994).

2024"When evaluating an ineffective assistance of counsel claim, we consider 'whether 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 –- and, if that is found, then, 1 For convenience, given the shared last name of the defendant and Heather Shurtleff, the latter will be referred to by her first name. 2 typically, whether it has likely deprived the defendant of an other wise available, substantial ground of defence.'" Commonwealth v. LaBrie, 473 Mass. 754, 771 (

2018"When evaluating an ineffective assistance of counsel claim, we consider 'whether 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-and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial **1026 ground of defence.' " Commonwealth v. LaBrie , 473 Mass. 754 , 771, 46 N.E.3d 519 (2016), quoting Commonwealth v. Saferian , 366 Mass. 89 , 96, 315 N.E.2d 878 (1974). " 'In cases where tactical or strate

2017See Commonwealth v. Randolph , 438 Mass. 290 , 296 (2002).

2003In Commonwealth v. Randolph, 438 Mass. 290, 295-96 (2002), the Supreme Judicial Court explained that the standard of review in evaluating an ineffective assistance of counsel claim based on counsel’s failure to raise and preserve an issue at trial or on appeal is no different from the substantial risk of a miscarriage of justice standard.

2025Commonwealth v. LaChance, 469 Mass. 854, 858 (2014), cert. denied, 577 U.S. 922 (2015).

2016The second new trial motion judge’s analysis, which anticipated the rule announced in LaChance, supra, correctly determined that counsel’s inaction was the product of “serious incompetency, inefficiency, or inattention to the defendant’s Sixth Amendment right to a public trial, and was not objectively reasonable,” but that the defendant otherwise failed to show that trial counsel’s conduct caused prejudice warranting a new trial. *815 On appeal, the defendant does not dispute that he failed to demonstrate prejudice, but rather asks us to revise the LaChance rule and instead hold that that a de

2026Commonwealth v. Davis, 481 Mass. 210, 222 (2019).

2025Commonwealth v. Davis, 481 Mass. 210, 222 (2019).

1999See Commonwealth v. Burke, 414 Mass. 252, 256-257 (1993); Commonwealth v. MacKenzie, 413 Mass. 498, 517 (1992); Commonwealth v. Wright, 411 Mass. 678 , 681-682 & n.1 (1992).” Commonwealth v. Plant, 417 Mass. 704, 715-716 (1994).

1999See Commonwealth v. Burke, 414 Mass. 252, 256-257 (1993); Commonwealth v. MacKenzie, 413 Mass. 498, 517 (1992); Commonwealth v. Wright, 411 Mass. 678 , 681-682 & n.1 (1992).” Commonwealth v. Plant, 417 Mass. 704, 715-716 (1994).

1999See Commonwealth v. Burke, 414 Mass. 252, 256-257 (1993); Commonwealth v. MacKenzie, 413 Mass. 498, 517 (1992); Commonwealth v. Wright, 411 Mass. 678 , 681-682 & n.1 (1992).” Commonwealth v. Plant, 417 Mass. 704, 715-716 (1994).

1999See Commonwealth v. Burke, 414 Mass. 252, 256-257 (1993); Commonwealth v. MacKenzie, 413 Mass. 498, 517 (1992); Commonwealth v. Wright, 411 Mass. 678 , 681-682 & n.1 (1992).” Commonwealth v. Plant, 417 Mass. 704, 715-716 (1994).

2023In other words, "an ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for [their] actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Id. at 811 , quoting Commonwealth v. Peloquin, 437 Mass. 204 , 210 n.5 (2002).

2023For the first time on appeal, the defendant claims that trial counsel's failure to argue for a manslaughter verdict constituted ineffective assistance of counsel.11 An ineffective assistance of counsel claim "based solely on the trial record" is the "'weakest form' because 'it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.'" Commonwealth v. Diaz, 448 Mass. 286, 289 (2007), quoting Commonwealth v. Peloquin, 437 Mass. 204 , 210 n.5 (2002). "[T]he preferred method for raising a claim of ineffective

2018LaChance , 469 Mass. at 858 , 17 N.E.3d 1101 , citing Commonwealth v. Azar , 435 Mass. 675 , 686-687, 760 N.E.2d 1224 (2002).

2013See Commonwealth v. Azar, 435 Mass. 675, 686-687 (2002) (standard for demonstrating that unobjected-to error requires reversal is essentially the same as that for demonstrating under the ineffective assistance of counsel test that an error of counsel deprived the defendant of a substantial ground of defense).

2026To prevail on an ineffective assistance of counsel claim, the defendant has the burden of showing 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 -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of 9 defence." Commonwealth v. Britto, 433 Mass. 596, 601 (2001), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2011Commonwealth v. Britto, 433 Mass. 596, 604 (2001).

2026Doe argues that his counsel was ineffective in the Superior Court proceeding for failing to challenge the hearing examiner's application of factors 10, 24, 33, and 38.2 To support an ineffective assistance of counsel claim in the sex offender registry context, the offender 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." Poe v. Sex Offender Registry Bd., 456 Mass. 801, 812 (2010), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2025To support an ineffective assistance of counsel claim in the sex offender registry context, the offender must first show that "there has been 4 serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer." Poe v. Sex Offender Registry Bd., 456 Mass. 801, 812 (2010), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2025See Commonwealth v. Montez, 450 Mass. 736, 755 (2008).

2025Commonwealth v. Montez, 450 Mass. 736, 755 (2008).

2024Under the first prong of Saferian, "[i]f the record reveals sound tactical reasons for counsel's decisions, an ineffective assistance of counsel claim will not succeed." Commonwealth v. Gonzalez, 443 Mass. 799, 809 (2005).

2024Under the first prong of Saferian, "[i]f the record reveals sound tactical reasons for counsel's decisions, an ineffective assistance of counsel claim will not succeed." Commonwealth v. Gonzalez, 443 Mass. 799, 809 (2005).

2024Where an ineffective assistance of counsel claim involves counsel's failure to file a motion to suppress, "the defendant must demonstrate that the evidence would have been suppressed if properly challenged." Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011).

2023Where an ineffective assistance of counsel claim involves counsel's failure to file a motion to suppress, "the defendant must demonstrate that the evidence would have been suppressed if properly challenged." Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011). "[A] defendant contesting a search or seizure will 4 need to show his or her own reasonable expectation of privacy in the place searched." Commonwealth v. DeJesus, 489 Mass. 292 , 296 (2022).

2023"A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' 6 We note that one of the officers who investigated the victim's apartment the night the assault occurred testified that he did not see the graffiti on the wall, which states "I dont want U any way [sic]," and that the victim did not see it until approximately two months after the assault. 7 when made." Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978).

2021If "the defendant's ineffective assistance of counsel claim is based on a tactical or strategic decision, the test is whether the decision was '"manifestly unreasonable" when made.'" Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). 1.

2025Recasting the argument as an ineffective assistance of counsel challenge fares no better. "[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204 , 210 n.5 (2002).

2023An ineffective assistance of counsel claim "made on the trial record alone is the weakest form of such a challenge." Commonwealth v. Peloquin, 437 Mass. 204 , 210 n.5 (2002).

2024"The critical inquiry is whether counsel's choice was an informed and reasonable decision; a consideration to be assessed in light of his over- all representation of the defendant at the trial." Frank, supra at 192 .

2024"The critical inquiry is whether counsel's choice was an informed and reasonable decision; a consideration to be assessed in light of his over- all representation of the defendant at the trial." Frank, supra at 192 .

2024See, e.g., Commonwealth v. Egardo, 426 Mass. 48, 49-50 (1997) (defendant retained ineffective assistance of counsel claim not raised on direct appeal where trial and appellate counsel both from same agency).

2007In Commonwealth v. Egardo, 426 Mass. at 49-50 , the court held that the defendant retained an ineffective assistance of counsel claim not raised on direct appeal because he was represented by counsel from the same organization, Committee for Public Counsel Services (CPCS), at trial and on appeal.

2024"When evaluating an ineffective assistance of counsel claim, we consider 'whether 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 –- and, if that is found, then, 1 For convenience, given the shared last name of the defendant and Heather Shurtleff, the latter will be referred to by her first name. 2 typically, whether it has likely deprived the defendant of an other wise available, substantial ground of defence.'" Commonwealth v. LaBrie, 473 Mass. 754, 771 (

2018"When evaluating an ineffective assistance of counsel claim, we consider 'whether 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-and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial **1026 ground of defence.' " Commonwealth v. LaBrie , 473 Mass. 754 , 771, 46 N.E.3d 519 (2016), quoting Commonwealth v. Saferian , 366 Mass. 89 , 96, 315 N.E.2d 878 (1974). " 'In cases where tactical or strate

2024Moreover, we have long recognized that, where, as here, a "defendant was represented by the same attorney at the trial and on [the] initial appeal," the defendant "is not precluded from seeking review" of an ineffective assistance of counsel claim "because of the failure of his first attorney" to raise that claim on direct appeal; "[i]t would be unrealistic to expect [the] first attorney to have raised a claim calling his own competence into question." Commonwealth v. Lanoue, 409 Mass. 1, 3-4 (1990).

1995“Without expressing any view as to the merits of [the defendant’s] claim of ineffective assistance of counsel, we are constrained to reverse the order denying the motion for a new trial and to remand the case to the Superior Court for consideration of the motion for new trial on its merits.” 1 Commonwealth v. Lanoue, 400 Mass. 1007, 1008 (1987), S.C., 409 Mass. 1 (1990).

2023For the first time on appeal, the defendant claims that trial counsel's failure to argue for a manslaughter verdict constituted ineffective assistance of counsel.11 An ineffective assistance of counsel claim "based solely on the trial record" is the "'weakest form' because 'it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.'" Commonwealth v. Diaz, 448 Mass. 286, 289 (2007), quoting Commonwealth v. Peloquin, 437 Mass. 204 , 210 n.5 (2002). "[T]he preferred method for raising a claim of ineffective

2023Id. at 289 .

2023"For such a claim to be successful, counsel's inadequate performance must 'appear[] indisputably on the trial record.'" Commonwealth v. Morales, 461 Mass. 765, 785 (2012), quoting Zinser, supra at 811 .

2018An ineffective assistance of counsel claim raised on the "trial record alone is the weakest form of such a challenge," Commonwealth v. Peloquin , 437 Mass. 204 , 210 n.5 (2002), and "[f]or such a claim to be successful, counsel's inadequate performance 'must appear indisputably on the trial record.' " Commonwealth v. Morales , 461 Mass. 765 , 785 (2012), quoting from Zinser , supra at 811 .