Commonwealth v. DePasquale (Lawyers Weekly No. 11-163-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   13-P-1248                                       Appeals Court   COMMONWEALTH  vs.  PHILLIP A. DESPASQUALE. No. 13-P-1248.     December 30, 2014.     Kidnapping.  Assault and Battery.  Larceny.  Practice, Criminal, Assistance of counsel.     On direct appeal from his convictions of (1) kidnapping, (2) assault and battery on a disabled person, (3) larceny over $ 250, and (4) larceny of a motor vehicle, the defendant contends that his trial counsel provided ineffective assistance of counsel.[1]   The preferred method to bring a claim for ineffective assistance of counsel is by way of a motion for a new trial, as it provides the opportunity for an evidentiary hearing and findings related to the trial attorney’s performance.  See Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 107 (1999).  However, a claim of ineffective assistance may be resolved on direct appeal when the factual basis of the claim appears indisputably on the trial record.  See Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).   We summarize the victim’s trial testimony, which was corroborated in nearly all material respects.  The victim testified that the defendant showed up at her house on January 26, 2011, and told her — albeit untruthfully — that her family was in trouble; he said that they had five minutes to leave the house.  While driving her car, the defendant directed her to withdraw as much money as she could from her bank account and to write checks payable to him.  She testified that when she asked the defendant what the money was for, he did not reply.  The victim also testified that she withdrew $ 500 from her bank account, wrote and cashed two checks (totalling $ 600) on her brother’s account, and gave the money to the defendant.  At trial, the defendant did not deny receiving money from the victim, but testified that the victim gave him the money to help him pay for a room he was considering renting.   We conclude that with regard to the claims argued here it is possible on this record to evaluate the performance of the defendant’s trial counsel.  In order to determine whether a new trial should be granted based on ineffective assistance of trial counsel, we apply the familiar Saferian test.  See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).  See also Commonwealth v. Satterfield, 373 Mass. 109, 115 & n.10 (1977).  Although certain […]

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