Commonwealth v. Albert J. Erler

APPEALS COURT

COMMONWEALTH vs. ALBERT J. ERLER

Docket:

24-P-983

Dates:

April 9, 2025 – October 10, 2025

Present:

Ditkoff, Singh, & Smyth, JJ.

County:

Essex

Keywords:

Motor Vehicle, Operating under the influence. Alcoholic Liquors, Motor vehicle. Evidence, Intoxication. Firearms. Practice, Criminal, Assistance of counsel, Plea, New trial, Motion in limine, Continuance without a finding.

Complaint received and sworn to in the

Lynn Division of the District Court Department on January 6, 2022.

The case was tried before James L.

LaMothe, Jr., J., and a motion for a new trial was heard by Ina Howard-Hogan,

J.

Neil S. Tassel for the defendant.

Zachary D. Grube, Assistant District

Attorney, for the Commonwealth.

DITKOFF, J. The defendant, Albert J. Erler, appeals from

his conviction, after a jury trial in the District Court, of operating a motor

vehicle while under the influence of intoxicating liquor (OUI), G. L.

c. 90, § 24 (1) (a) (1), and the denial of his motion

for a new trial. We reaffirm our holding

in Commonwealth v. Indelicato, 40 Mass. App. Ct. 944, 945 (1996), that failure

to advise a defendant about the collateral consequences of a guilty plea on the

right to possess firearms does not constitute ineffective assistance of

counsel. Further, we reject the

defendant's other claims of ineffective assistance of counsel. Finally, concluding that the judge acted

within his discretion in admitting the name of the establishment where the

defendant drank and that the evidence was sufficient to show that he was impaired,

we affirm.

1.

Background. At approximately 1:18

A.M. on January 6, 2022, a State trooper observed the defendant's motor

vehicle, traveling on Route 1, "swerving back and forth between the right

lane and the middle lane." The

defendant also appeared to be sending text messages while driving. The trooper stopped the defendant.

Upon approaching the motor vehicle, the

trooper "immediately smelled an overwhelming odor of intoxicating

liquor." The trooper observed that

the defendant "had bloodshot, glassy eyes." The trooper asked the defendant where he was

coming from, and the defendant paused for approximately ten seconds and then

said, "I'm trying to think."

Finally, he stated that "he was out with friends getting food and

drinks." Eventually he stated that

he was coming from the Golden Banana, apparently a well-known "gentlemen's

club." See Cabaret Enters., Inc. v.

Alcoholic Beverages Control Comm'n, 393 Mass. 13, 14 (1984). He stated that he had consumed "four to

five vodka tonics." Throughout the

conversation, the defendant had slurred speech, and the trooper continued to

smell intoxicating liquor.

The trooper arrested the defendant and

transported him to a State police barracks.

When the trooper removed the defendant from his cruiser, he noticed

"an overwhelming odor of intoxicating liquor that was now in my cruiser

that was not in the cruiser prior to him being placed there."

After a trial, a jury convicted the

defendant of OUI. Several months later,

the defendant filed a motion for a new trial, alleging that defense counsel was

ineffective for not advising him to consider alternatives to going to trial,

such as a continuance without a finding.

Defense counsel averred that he knew the defendant had a license to

carry firearms and "did not discuss with him the repercussions of a

conviction versus a continuance without a finding would have, particularly on

his right to own firearms or maintain a license to carry firearms." The trial judge having recently retired, a

different judge (motion judge) denied the motion. This appeal, from both the conviction and the

denial of the motion for a new trial, followed.

2.

Ineffective assistance of counsel.

a. Standard of review. "[W]e review the denial of a motion for

a new trial for 'a significant error of law or other abuse of

discretion.'" Commonwealth v. Diaz,

100 Mass. App. Ct. 588, 592 (2022), quoting Commonwealth v. Duart, 477 Mass.

630, 634 (2017), cert. denied, 584 U.S. 938 (2018). "To prevail on a motion for a new trial

claiming ineffective assistance of counsel, a defendant must show that there

has been a '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 counsel's poor performance 'likely

deprived the defendant of an otherwise available, substantial ground of

defence.'" Commonwealth v.

Encarnacion, 105 Mass. App. Ct. 46 , 57 (2024), quoting Commonwealth v. Millien,

474 Mass. 417, 429-430 (2016). The

Supreme Judicial Court has held that, "if the [plea] offer is rejected

because of the ineffective assistance of counsel, the fact that the defendant

subsequently receives a fair trial does not ameliorate the constitutional harm

that occurred in the plea consideration process." Commonwealth v. Mahar, 442 Mass. 11, 14-15

(2004). Here, in the related context

where there was no plea offer, "the defendant must demonstrate a

reasonable probability that the prosecution would have made an offer, that the defendant

would have accepted it, and that the court would have approved it." Commonwealth v. Marinho, 464 Mass. 115, 129

(2013).

b.

Advice about firearm licensure.

"There is no doubt that counsel must provide constitutionally

effective assistance when advising a defendant about the direct consequences of

a guilty plea." Commonwealth v.

Minon, 102 Mass. App. Ct. 244, 247 (2023).

Direct consequences include the actual sentence and the waiver of rights

against self-incrimination, to a jury trial, and to confront one's

accusers. Id.

OUI is a misdemeanor punishable by up to

two and one-half years in a house of correction, G. L. c. 90,

§ 24 (1) (a) (1), first par. For this reason, a conviction for OUI

disqualifies a defendant from obtaining a firearms identification card or a

license to carry firearms. G. L.

c. 140, § 121F (j) (i) (B), as inserted by St. 2024,

c. 135, § 32.[1] It also renders it

illegal under Federal law for a defendant to possess a firearm or for anyone to

sell or give one to that defendant. 18

U.S.C. §§ 921 (a)(20)(B), 922(d)(1), (g)(1). After five years of the most recent punitive

measure stemming from the disqualifying conviction, a defendant may petition

the firearm licensing review board for the restoration of the ability to obtain

a firearms license. G. L.

c. 140, § 130B (d).[2]

Accord 18 U.S.C. § 921 (a)(20), second par. Conversely, a continuance without a finding

does not qualify as a conviction, see G. L. c. 140, § 121;

Commonwealth v. Beverly, 485 Mass. 1 , 7 (2020); accord 18 U.S.C.

§ 921 (a)(20), second par., although in theory it could be a basis for a

separate finding of unsuitability to obtain either a firearms identification

card or a license to carry. G. L.

c. 140, § 121F (k), as inserted by St. 2024, c. 135, § 32.[3]

Here, the defendant avers that defense

counsel "did not tell me that I would lose my right to possess firearms if

I were convicted" and that he "would have admitted to sufficient

facts and accepted a continuance without a finding had I been advised that it

would ensure that I did not lose my firearm rights." Defense counsel, in turn, averred that he did

not discuss the impact of the various options on the defendant's right to

possess firearms. Based on this, the

defendant argues that defense counsel was ineffective in failing to

affirmatively advise him that a conviction would cause him to lose his right to

possess firearms and to advise him to seek a continuance without a finding.

We rejected this argument in Commonwealth

v. Indelicato, 40 Mass. App. Ct. 944 (1996).

There, the defendant pleaded guilty to assault and battery and carrying

a dangerous weapon, both misdemeanors punishable by up to two and one-half

years in a house of correction. Id. at

944 . Plea counsel advised the defendant

"that his guilty pleas 'would not preclude him from seeking a license to

carry a firearm,'" id., which was true under then-existing State law. See G. L. c. 140, § 129B,

first par., as amended by St. 1969, c. 799, § 7; G. L.

c. 140, § 131, second par., as amended by St. 1986, c. 481,

§ 2. It was not, however, true under

Federal law, which already prohibited individuals convicted of State

misdemeanors carrying punishment of more than two years of imprisonment from

possessing firearms. 18 U.S.C.

§§ 921 (a)(20), 922(g)(1). We stated

that ineffectiveness does not generally exist where "the mistaken or

incomplete advice concerns a matter that is entirely collateral to the charges

pending for plea or trial," and that "the advice [defense counsel]

gave to the defendant, while misleading as to a collateral consequence of the

plea, does not amount to a failing that was 'grave and fundamental.'" Indelicato, supra at 945 , quoting

Commonwealth v. Norman, 27 Mass. App. Ct. 82, 86 , S.C., 406 Mass. 1001 (1989). In doing so, we followed well-settled law

that "a defendant need not be advised of contingent or collateral

consequences" of a guilty plea.

Commonwealth v. Hason, 27 Mass. App. Ct. 840, 843 (1989).

The defendant advances two reasons why we

should reconsider Indelicato. First, he

points out that the United States Supreme Court in Padilla v. Kentucky, 559

U.S. 356, 360 (2010), established that failure to advise a defendant of certain

immigration consequences of a guilty plea constitutes ineffective assistance of

counsel. The Court in Padilla, however,

did not purport to eliminate the distinction between direct and collateral

consequences, but rather held that "[d]eportation as a consequence of a

criminal conviction is, because of its close connection to the criminal

process, uniquely difficult to classify as either a direct or a collateral

consequence." Id. at 366 . Accordingly, the Supreme Judicial Court has

"interpreted the Padilla case not as an abrogation of the direct and

collateral consequence distinction, . . . but simply as clarification

that deportation is not '"collateral" to the criminal justice

process.'" Commonwealth v.

Sylvester, 476 Mass. 1, 7 (2016), quoting Marinho, 464 Mass. at 124 . Instead, it remains the case that "[a]dvice

as to collateral consequences . . . has been considered outside the

ambit of the right to the effective assistance of counsel." Minon, 102 Mass. App. Ct. at 247 . Accord Commonwealth v. Henry, 488 Mass. 484 ,

497 (2021).

Second, the defendant argues that loss of

the right to possess a firearm is no longer a collateral consequence now that

the United States Supreme Court has recognized an individual constitutional

right to keep and bear arms.[4] See

McDonald v. Chicago, 561 U.S. 742, 767-770, 778 (2010); District of Columbia v.

Heller, 554 U.S. 570, 592 (2008). To be

sure, the fact that deportation is a "particularly severe" penalty

factored into the Supreme Court's decision that deportation was not properly

classified as collateral. Padilla, 559

U.S. at 365, 373 . Accord Sylvester, 476

Mass. at 10 . Nonetheless,

"[c]riminal convictions can carry a wide variety of consequences other

than conviction and sentencing, including civil commitment, civil forfeiture,

the loss of the right to vote, disqualification from public benefits,

ineligibility to possess firearms, dishonorable discharge from the Armed

Forces, and loss of business or professional licenses." Minon, 102 Mass. App. Ct. at 248 , quoting

Padilla, 559 U.S. at 376 (Alito, J., concurring).

We recognize the importance of the

constitutional right to bear arms, but all constitutional rights are lost when

a noncitizen is removed from the country.

The possibility of indefinite civil commitment as a sexually dangerous

person is a particularly severe consequence, but it remains a collateral consequence

that the defendant need not be aware of to render a voluntary and intelligent

guilty plea. See Commonwealth v.

Roberts, 472 Mass. 355, 363-364 (2015) ("The Sixth Amendment [to the

United States Constitution] analysis in Padilla did not erode the well-settled

principle that a judge's failure to inform a defendant of a collateral

consequence -- such as civil confinement -- is, without more, insufficient to

render a defendant's guilty plea involuntary under the due process

clause"). Similarly, restrictions

on earning good time, Commonwealth v. Brown, 6 Mass. App. Ct. 844, 844 (1978),

or calculations of parole eligibility, Commonwealth v. Santiago, 394 Mass. 25,

30 (1985), are collateral consequences despite directly affecting a defendant's

liberty. One could have a spirited

debate whether the right to bear arms is more or less important than the right

to vote, the right to property, or the right to pursue a livelihood, see Minon,

102 Mass. App. Ct. at 248 , but the point remains that the undeniable importance

of the right to keep and bear arms does not remove it from the ranks of

collateral consequences that a criminal defendant need not be informed of to

render a valid guilty plea. Accordingly,

seeing no reason to depart from our holding in Indelicato, we affirm that a

defendant need not be affirmatively informed by counsel of the consequences of

a conviction on the right to possess a firearm prior to deciding whether to

enter into a plea agreement.

c.

Trial ineffectiveness. The

defendant's argument that counsel was ineffective in failing to present the

jury with the defendant's booking photograph or the video recording of the

booking process falters on the fact that the defendant did not present either

the photograph or the video recording to the motion judge (or to us, for that

matter). Without seeing the photograph

or the video recording, the motion judge had no way to assess whether either

would have provided the defendant with a substantial defense. See Commonwealth v. Alvarez, 62 Mass. App.

Ct. 866, 870 (2005), quoting Commonwealth v. Collins, 36 Mass. App. Ct. 25, 30

(1994) (without affidavits from witnesses not interviewed, "the judge was

'unable to rule on the question of whether [the witnesses'] testimony would

likely have made a material difference'").

Accordingly, the defendant failed to show that he was prejudiced by any

shortcoming in this respect.

We also discern no ineffectiveness in

counsel's handling of the defendant's admitted drinking. During attorney-conducted voir dire of the

jury venire, counsel asked several of the prospective jurors some version of

whether they would convict solely on evidence that the defendant had "had

a couple of drinks." When one juror

asked for clarification regarding what he meant, counsel said, "two,

three, four." Although the primary

meaning of "couple" is exactly two, the word also can mean "[a]

few." Merriam-Webster's Collegiate

Dictionary 286 (11th ed. 2020). This

tactic was a reasonable part of defense counsel's strategy to minimize the

impact of the defendant's admitted drinking.

After the trooper testified that the defendant admitted to having four

to five drinks, counsel elicited that the trooper did not ask the defendant

when he had those drinks and that it could have been as much as seven hours

before the stop. Counsel asserted both

in his opening statement and his closing argument that the evidence had little

relevance because of the indefinite time frame.

Seeking to eliminate jurors who would not be receptive to counsel's

efforts to minimize the impact of the admitted drinking was not

"manifestly unreasonable."

Commonwealth v. Robinson, 493 Mass. 775 , 789 (2024), quoting

Commonwealth v. Henderson, 486 Mass. 296 , 302 (2020).

Finally, we discern no prejudice from

counsel's failure to introduce evidence that the defendant had a pierced tongue

and stud at the time of the stop.

Counsel elicited from the trooper that he had "no idea how [the

defendant] speaks normally" and that he "do[es] not know if he speaks

slurred prior" to drinking. Putting

aside the fact that the defendant has identified no way in which he could have

established that the defendant had a pierced tongue and stud at the time of the

stop, that fact would have added little to the defense. See Commonwealth v. Brown, 71 Mass. App. Ct.

743, 747 (2008) (no ineffectiveness in failure to present cumulative evidence).

3.

Prejudicial evidence. The trial

judge denied the defendant's motion in limine to exclude testimony that the

establishment at which the defendant had consumed alcohol was the Golden

Banana. Accordingly, the issue is

preserved. See Commonwealth v. Bohigian,

486 Mass. 209 , 219 (2020).

"[W]hether evidence is relevant and whether its probative value is

substantially outweighed by its prejudicial effect are matters entrusted to the

trial judge's broad discretion and are not disturbed absent palpable

error." Commonwealth v. Pardee, 105

Mass. App. Ct. 496 , 498 (2025), quoting Commonwealth v. Sylvia, 456 Mass. 182,

192 (2010). A defendant's report of the

number of alcoholic drinks consumed is relevant to show the source and possible

degree of intoxication, and details such as the location add to the credibility

of the report. See, e.g., Commonwealth

v. Wolfe, 478 Mass. 142 , 143 (2017) ("defendant admitted that he had been

at a nightclub where he had consumed 'a few' drinks"); Commonwealth v.

Palacios, 90 Mass. App. Ct. 722, 723 (2016) (defendant reported having

"two to three drinks"); Commonwealth v. Bigley, 85 Mass. App. Ct.

507, 510 (2014) (defendant reported having "a few drinks" at

"the Riviera Café on Crapo Street in Bridgewater"). The trial judge here addressed the possible

prejudice from the use of "Golden Banana" by asking the prospective

jurors whether they "have any moral objections to gentlemen's clubs in

particular or perceive them to be immoral." Minimizing the prejudicial nature of evidence

through voir dire questions is a tried and true method for judges to address

such issues. See, e.g., Commonwealth v. Phim,

462 Mass. 470, 477-478 (2012); Commonwealth v. Swafford, 441 Mass. 329, 332 (2004). We discern no palpable error in the trial

judge's handling of this evidence.

4.

Sufficiency of the evidence.

"[W]e consider the evidence introduced at trial in the light most

favorable to the Commonwealth, and determine whether a rational trier of fact

could have found the essential elements of the crime beyond a reasonable

doubt." Commonwealth v. Lagotic,

102 Mass. App. Ct. 405 , 407 (2023), quoting Commonwealth v. Tsonis, 96 Mass.

App. Ct. 214 , 216 (2019). "The

inferences that support a conviction 'need only be reasonable and possible;

[they] need not be necessary or inescapable.'" Commonwealth v. Quinones, 95 Mass. App. Ct.

156, 162 (2019), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303

(2016).

Here, the trooper testified that the

defendant was driving erratically, swerving between lanes. See Tsonis, 96 Mass. App. Ct. at 219 (erratic

driving was evidence of impairment). He

had "an overwhelming odor of intoxicating liquor" and

"bloodshot, glassy eyes." See

Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 350, 354 (2015) (glassy,

bloodshot eyes and strong odor of alcohol were evidence of impairment);

Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011) ("slurred

speech, belligerent demeanor, strong odor of alcohol, poor balance, and glassy,

bloodshot eyes" were evidence of impairment). That there was a possible alternative

explanation for the defendant's erratic driving does not defeat sufficiency, as

the jury could reasonably infer that the erratic driving was caused by the

defendant's admitted alcohol consumption.

See Commonwealth v. Burgos, 462 Mass. 53, 67-68 , cert. denied, 568 U.S.

1072 (2012). In combination, the

evidence was sufficient to permit the jury to find that the defendant was

impaired. See Commonwealth v. Gallagher,

91 Mass. App. Ct. 385 , 392-393 (2017).

Judgment

affirmed.

Order denying

motion for a new trial affirmed.

footnotes

[1] At the time

of the trial, these prohibitions were in G. L. c. 140,

§ 129B (1) (i) (B), as amended by St. 2014, c. 284,

§ 30, and G. L. c. 140, § 131 (d) (i) (B),

as amended by St. 2014, c. 284, § 48.

This state of affairs has existed since 1998. See St. 1998, c. 180, §§ 29, 41;

St. 1994, c. 25, § 3.

[2] Specifically,

five years must have passed since release from incarceration and termination of

parole or probation supervision.

G. L. c. 140, § 130B (d) (ii). Certain misdemeanors, such as domestic

assault, are excluded. G. L.

c. 140, § 130B (d) (i).

This statute was added in 2004.

St. 2004, c. 150, § 9.

[3] At the time

of trial, these provisions were in G. L. c. 140, § 129B (1 1/2),

inserted by St. 2014, c. 284, § 30, and G. L. c. 140,

§ 131 (d), third par., as amended by St. 2022, c. 175, § 9.

[4] The defendant

also argues in passing that loss of the right to possess firearms is not a

collateral consequence because the loss is automatic. That was the case in 1996 (indeed, unlike

now, then the loss was permanent), and thus is not a reason to depart from the

holding in Indelicato. In any event, the

Supreme Judicial Court held in Sylvester, 476 Mass. at 8-10 , that an automatic

consequence, such as sex offender registration, still can be collateral. What makes it a collateral consequence is

that it "flows or may flow secondarily from conviction or

incarceration." Commonwealth v.

Rodriguez, 52 Mass. App. Ct. 572, 578-579 (2001).