Recently the SJC ruled that the Melendez Diaz holding could not be used retroactively in COMMONWEALTH vs. YAINIRA BORIA 460 Mass. 249 (2011).
The court in Discussing the case stated “The defendant claims that her appellate counsel was ineffective in representing her because she failed to pursue trial counsel’s objection to the admissibility of the drug certificate on the direct appeal, and then failed to move to stay that appeal until the United States Supreme Court rendered its decision in Melendez-Diaz I. If she were to succeed in her arguments, the defendant would be entitled to a new appeal, rather than a new trial. See Commonwealth v. Stote, 456 Mass. 213 , 217-218 n.9 (2010).
To prevail, the defendant bears the burden of demonstrating 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 that, as a result, the defendant was “likely deprived . . . of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89 , 96 (1974). “A strategicor tactical decision by counsel will not be considered ineffective assistance unless the decision was ‘manifestly unreasonable’ when made.” Commonwealth v. Watson, 455 Mass. 246 , 256 (2009), quoting Commonwealth v. Martin, 427 Mass. 816 , 822 (1998).
Appellate counsel’s failure to press the defendant’s objection to the admission of the drug certificates in the direct appeal did not constitute ineffective assistance. In light of Commonwealth v. Verde, supra at 284, such a claim would have been futile at the time her appeal was brought in, and decided by, the Appeals Court. See Commonwealth v. Vasquez, 456 Mass. 350 , 356 (2010). It would not have mattered whether the issue had been included in her initial claim of appeal or had been added to that claim after certiorari was granted in Melendez-Diaz I. In either event, the appeal would have failed, and the conviction become final long before Melendez-Diaz I was decided. Consequently, the Supreme Court’s ruling in Melendez-Diaz I would have had no effect. See Melendez-Diaz II, supra at 239-240 (ruling in Melendez-Diaz was new rule not applicable to convictions which were final before it was decided). While counsel may choose to make such a futile appeal in an attempt to seek a change in the law, the failure to do so cannot have rendered her performance “measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, supra. See Commonwealth v. Sowell, 34 Mass. App. Ct. 229 , 233 (1993), quoting Smith v. Murray, 477 U.S. 527, 536 (1986) ( ” ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail . . . is the hallmark of effective appellate advocacy”).
The defendant further claims, however, that if appellate counsel had sought a stay of her appeal once certiorari had been granted in Melendez-Diaz I, she might have successfully delayed the hearing in her direct appeal until after the Court had decided the case, thus making the Supreme Court’s ruling available to her because her conviction would not have been final. We are not persuaded that the failure to seek what would have been a lengthy stay of an appeal on the granting of certiorari in an unrelated criminal case, on the chance that an issue may be decided to the defendant’s advantage, constitutes ineffective assistance ofcounsel. This is particularly the case when there are countervailing reasons, as there were here, not to seek such a stay.
The case against the defendant was very strong. Consequently, her principal claim on appeal was that the five-year mandatory term of imprisonment she had received was the result of a misinterpretation and misapplication of the mandatory sentencing provision in the statute. The defendant was serving her sentence while the appeal was pending. If she had prevailed, she would have been resentenced and, in light of the time she had served, released immediately. The alternative, now argued, would have significantly delayed a decision on the sentencing claim while she remained incarcerated, in the hope of benefiting on an issue uncertain in outcome, that would, at best, eventually win her a new trial, at which the evidence of her guilt once again would have been very powerful. The failure to pursue such a course was not manifestly unreasonable at the time.
3. Conclusion. For the foregoing reasons, the denial of the defendant’s motion for a new trial is affirmed.
Attorney Ronald A. Sellon