In 2015 Timothy Tracy was charged with operating under the influence of alcohol (second offense) after a multiple-car crash at Exit 5 on the northbound side of I-91.
Timothy admitted to facts sufficient for a finding of guilty in Springfield District Court. Although Timothy was charged with OUI second offense, he received a first-offense OUI disposition.
Seven years later, Timothy filed a motion to withdraw his plea. In the affidavit supporting his motion, Timothy claimed that he showed his attorney documentation of a massive pothole on I-91. According to Timothy, his efforts to avoid the said pothole caused his driving to seem impaired.
The affidavit states,
This documented pothole record would have shown that my driving ability was not diminished but a reasonable response to road defects. Had I had this document in my possession, I would not have pleaded guilty because I would have had a valid defense, a rebuttal argument and reasonable doubt.
Timothy alleges that his attorney failed to investigate this potential “pothole defense” thus depriving Timothy of effective assistance of counsel.
The motion judge denied Timothy’s request, pointing out that Timothy received an excellent plea deal in 2015 and that there was “no nexus” between the I-91 pothole and the multi-car crash.
Timothy appealed and the Appeals Court upheld the motion judge’s ruling.
According to the Appeals Court.
We discern no error of law or abuse of discretion in the motion judge’s determination that the defendant did not meet his burden of showing that plea counsel’s failure to pursue the putative pothole defense was conduct falling measurably below that of an ordinary, fallible attorney, or that counsel’s conduct deprived the defendant of a substantial ground of defense.
Additionally, the justices note that
at no time [following the crash] did the defendant mention swerving to avoid a pothole. Likewise, at the plea hearing, the defendant acknowledged under oath that the evidence was sufficient to prove him guilty of OUI. The defendant’s sworn statements must not be discarded on the later assertion that he had his fingers crossed. (Citations and quotations omitted.)
The full text of the opinion is attached below: