ineffective assistance claim in Massachusetts

2024However, Sasen attempts to present this ineffective assistance claim on direct appeal, rather than through a motion for a new trial. "[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006).

2023"The occasions when a court can resolve an ineffective assistance claim on direct appeal are exceptional." Commonwealth v. Zinser, 446 Mass. 807 , 809 n.2 (2006).

2025Specifically, a defendant advancing such an ineffective assistance claim in support of a new trial motion must prove that his counsel’s “representation fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that the performance inadequacy ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’” Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting Saferian, 366 Mass. at 96 . “[T]he burden of proving ineffectiveness rests with the defendant.” Ng, 489 Mass. at 249; Kolenovic, 471 Mass. at 673 , quoting Commonwealth v.

2023Commonwealth v. Kolenovic, 478 Mass. 189 , 192- 193 (2017), quoting Commonwealth v. Gulla, 476 Mass. 743 , 745- 746 (2017) ("In the review of cases involving murder in the first degree, '[r]ather than evaluating an ineffective assistance claim under the traditional standard of Commonwealth v. Saferian, 366 Mass. 89, 96 [1974], . . . we apply the standard of G.

2025We may resolve an ineffective assistance claim on direct appeal only if "the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). "[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" (citation and quotation omitted).

2009Consequently, when presented with an ineffective assistance claim in this procedural posture, we will reverse only if the factual basis for the claim “appears indisputably on the trial record.” Id. at 811 , quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).

2025Accordingly, based on the trial record, we conclude that the basis of this ineffective assistance claim does not "appear[] indisputably on the trial record." Diaz, 448 Mass. at 289 .

2025See Commonwealth v. Diaz, 448 Mass. 286, 289 (2007) ("An ineffective assistance claim based on the failure to bring a motion requires the defendant to show that the motion would likely have been granted"); Commonwealth v. Mathews, 450 Mass. 858, 873 (2008) ("Ultimately, the defendant must demonstrate that trial counsel would have been successful had he filed a motion to dismiss"). 3.

2025Specifically, a defendant advancing such an ineffective assistance claim in support of a new trial motion must prove that his counsel’s “representation fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that the performance inadequacy ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’” Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting Saferian, 366 Mass. at 96 . “[T]he burden of proving ineffectiveness rests with the defendant.” Ng, 489 Mass. at 249; Kolenovic, 471 Mass. at 673 , quoting Commonwealth v.

2025Specifically, a defendant advancing such an ineffective assistance claim in support of a new trial motion must prove that his counsel’s “representation fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that the performance inadequacy ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’” Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting Saferian, 366 Mass. at 96 . “[T]he burden of proving ineffectiveness rests with the defendant.” Ng, 489 Mass. at 249; Kolenovic, 471 Mass. at 673 , quoting Commonwealth v.

2025When the ineffective assistance 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).

2025When the ineffective assistance 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).

2025When assessing an ineffective assistance claim based on counsel's failure to investigate, we evaluate the omission's reasonableness in context, 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).

2023To prevail on an ineffective assistance claim in these circumstances, the defendant must show a "reasonable probability" that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), quoting Strickland, 466 U.S. at 694 .

2019"A list of subjective critiques of defense counsel's [performance], absent a showing that errors likely affected the jury's conclusions," however, "is insufficient to support an ineffective assistance claim." See Commonwealth v. Degro, 432 Mass. 319, 333 (2000), quoting Commonwealth v. Scott, 428 Mass. 362, 369 (1998).

2007A catalogue of “subjective critiques of defense counsel’s decisions, absent a showing that errors likely affected the jury’s conclusions, is insufficient to support an ineffective assistance claim.” Commonwealth v. Scott, 428 Mass. 362, 369 (1998).

2025Manifestly unreasonable decisions refer only to "strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent." Kolenovic, supra, quoting Commonwealth v. Pillai, 445 Mass. 175, 186-187 (2005).

2025Manifestly unreasonable decisions refer only to "strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent." Kolenovic, supra, quoting Commonwealth v. Pillai, 445 Mass. 175, 186-187 (2005). a.

2024An ineffective assistance claim "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).

2018An ineffective assistance claim asserted in this manner-"made on the trial record alone"-is in its "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." 5 Commonwealth v. Peloquin , 437 Mass. 204 , 210 n.5 (2002).

2000See Commonwealth v. Curtis, 417 Mass. 619 , 624-625 n.4 (1994) (“If an omission of counsel does not present a substantial risk of a miscarriage of justice . . . there is no basis for an ineffective assistance claim under either the Federal or the State Constitution”).

1999Although the defendant’s ineffective assistance claim is couched in rather conclusory terms of counsel’s errors having created a substantial risk of a miscarriage of justice, rather than expressly demonstrating that they “likely deprived [him] of an otherwise available, substantial ground of defence,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), or that “better work might have accomplished something material for the defense,” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977), we proceed on the basis that the two standards are “not significantly different.” Commonwealth v. Curtis, 41

2025Specifically, a defendant advancing such an ineffective assistance claim in support of a new trial motion must prove that his counsel’s “representation fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that the performance inadequacy ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’” Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting Saferian, 366 Mass. at 96 . “[T]he burden of proving ineffectiveness rests with the defendant.” Ng, 489 Mass. at 249; Kolenovic, 471 Mass. at 673 , quoting Commonwealth v.

2024Commonwealth v. Montez, 450 Mass. 736, 755 (2008). 10 When the ineffective assistance 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).

2008See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006); Commonwealth v. McCormick, 48 Mass. App. Ct. 106,107-108 (1999).

2007Section 14(d), added by St. 1999, c. 74, § 8, provides in pertinent part: “If after the trial, the jury finds unanimously and beyond a reasonable doubt that the person named in the petition is a sexually dangerous person, such person shall be committed.” Despite the defendant’s failure to satisfy the recommended prerequisite and move for a new trial before bringing an ineffective assistance claim, Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 107 (1999), we consider his assertion here under the narrow exception applicable when “the factual basis of the claim appears indisputably on the tri

2005To satisfy the second prong of the ineffective assistance claim, the defendant must show that “better work might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

1999Although the defendant’s ineffective assistance claim is couched in rather conclusory terms of counsel’s errors having created a substantial risk of a miscarriage of justice, rather than expressly demonstrating that they “likely deprived [him] of an otherwise available, substantial ground of defence,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), or that “better work might have accomplished something material for the defense,” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977), we proceed on the basis that the two standards are “not significantly different.” Commonwealth v. Curtis, 41

2024See Commonwealth v. Curtis, 417 Mass. 619 , 624 n.4 (1994); Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 100 (2010). 3.

2016See Commonwealth v. Curtis, 417 Mass. 619 , 624 n.4 (1994); Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 100 (2010).

2015See Clarke, supra. See also State v. Paredez, 136 N.M. 533, 539 (2004) (“We hold that criminal defense attorneys are obligated to determine the immigration status of their clients.

2014To succeed on an ineffective assistance claim, the defendant was required to provide factual support showing that trial counsel’s representation fell “measurably below that which might be expected of an ordinary fallible lawyer.” Commonwealth v. Dejesus , 468 Mass, at 178, quoting from Commonwealth v. Clarke, 460 Mass. 30, 45 (2011).

2025See Commonwealth v. Millien, 474 Mass. 417, 432 (2016).

2025See Commonwealth v. Millien, 474 Mass. 417, 430-433 (2016) (discussing meaning of prejudice in the context of an ineffective assistance claim). 16 defence," Henley, 488 Mass. at 134 (quotation omitted), where the defendant's trial counsel knew that his strategy could open the door to the admission of such prior bad act evidence, and where such evidence was properly admitted.8 b.

2024We review the motion judge's denial of the motion for a new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

2015We review the denial of such a motion for “a significant error of law or other abuse of discretion,” Commonwealth v. Forte, 469 Mass. 469, 488 (2014), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986), granting “special deference” to the rulings of a motion judge who, like the judge here, also presided at trial.

2023To prevail on an ineffective assistance claim in these circumstances, the defendant must show a "reasonable probability" that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), quoting Strickland, 466 U.S. at 694 .

2014Prejudice in the precincts of ineffective assistance is defined as “a ‘reasonable probability’ that, ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id., quoting Commonwealth v. Mahar, 442 Mass. 11, 15 (2004) (citation omitted).

2023Although a person asserting an ineffective assistance claim is ordinarily required to show prejudice in order to overcome the "strong presumption of reliability," typically accorded to judicial proceedings, Flores-Ortega, 528 U.S. at 482 , quoting United States v. Cronic, 466 U.S. 648 , 659 n.26 (1984), this presumption is absent where counsel's alleged deficiencies "led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself," Flores-Ortega, supra at 483 .

1995The defendant seeks to bring his claim within United States v. Cronic, 466 U.S. 648, 662 (1984), in which the United States Supreme Court indicated in dictum that there may be some rare circumstances involving an ineffective assistance claim where prejudice may be presumed “without inquiry into counsel’s actual performance at trial.” The discussion in the Cronic case, about a possible per se violation of a defendant’s effective representation right, has no application to this case where trial counsel’s performance was adequate.

2023See Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981).

1997In these circumstances, that decision was not “manifestly unreasonable,” Commonwealth v. Moffett, 383 Mass. 201, 214 (1981), and, so, cannot form the basis for an ineffective assistance claim.

2018See Commonwealth v. Ramos , 66 Mass. App. Ct. 548 , 552 (2006) ("While we could speculate about defense counsel's rationale for proceeding the way he did, the proper mechanism for advancing the defendant's ineffective assistance claim is through a motion for a new trial ...").

2016“While we could speculate about defense counsel’s rationale for proceeding the way he did, the proper mechanism for advancing the defendant’s ineffective assistance claim is through a motion for a new trial, which provides the opportunity for an evidentiary hearing and findings related to the trial attorney’s performance.” Commonwealth v. Ramos, 66 Mass. App. Ct. 548, 552 (2006).

2017Where the defendant’s ineffective assistance claim is based on a tactical or strategic decision, we apply the more rigorous standard that, to be ineffective, the attorney’s decision must have been ‘“manifestly unreasonable.” Commonwealth v. Lang, 473 Mass. 1, 14 (2015). i. Failure to introduce exculpatory CSLI evidence.

2017Where the defendant's ineffective assistance claim is based on a tactical or strategic decision, we apply the more rigorous standard that, to be ineffective, the attorney's decision must have been "manifestly unreasonable." Commonwealth v. Lang, 473 Mass. 1, 14 (2015). i. Failure to introduce exculpatory CSLI evidence.

2015Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978). “[S]trategic choices made after less than complete investigation are reasonable [only] to the extent that reasonable professional judgments support the limitation on investigation.” Commonwealth v. Baker, 440 Mass. 519, 529 (2003), quoting Strickland v. Washington, 466 U.S. 668, 690-691 (1984).

1981See Commonwealth v. Adams, 374 Mass. 722, 728 (1978); Commonwealth v. Key, 381 Mass. 19, 31-32 (1980). *178 Consideration of an ineffective assistance claim requires a two-step inquiry: “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 ground of defense.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2025As to the first prong of the ineffective assistance test, we are persuaded by the judge's determination that the victim's view as to what precipitated the defendant's angry and assaultive behavior did not provide an "obviously powerful form of impeachment." Fisher, 433 Mass. at 357 .

2024Since impeachment of a witness is "fraught with a host of strategic considerations," an ineffective assistance claim based on failure to impeach is "difficult to establish." Fisher, 433 Mass. at 357 .

2026See Lavrinenko, 473 Mass. at 53 (defense counsel's failure to make "a reasonable inquiry of the client regarding his or her citizenship and immigration status" satisfied "deficient performance prong of the ineffective assistance analysis"); DeJesus, 468 Mass. at 182 (defense counsel's failure to provide defendant with specific advice about certainty of deportation satisfied performance prong of ineffective assistance claim).

2024"Therefore, the failure of a criminal defense attorney to make a reasonable inquiry of the client regarding his or her citizenship and immigration status is sufficient to satisfy the deficient performance prong of the ineffective assistance analysis." Id. at 53 .

2007See Commonwealth v. Anderson, 58 Mass. App. Ct. 117 , 124 n.8, cert. denied, 540 U.S. 1009 (2003).

2007“A claim of ineffective assistance may be resolved on direct appeal of the defendant’s conviction when the factual basis of the claim appears indisputably on the trial record.” Commonwealth v. Anderson, 58 Mass. App. Ct. 117, 124 , cert. denied, 540 U.S. 1009 (2003).

2017Id. at 295- 296. "[I]neffectiveness is presumed if the attorney's omission created a substantial risk, and disregarded if it did not." Id. at 296 .

2017Id. at 295- 296. "[I]neffectiveness is presumed if the attorney's omission created a substantial risk, and disregarded if it did not." Id. at 296 .