COMMONWEALTH vs. GERALD WILLIAMS (No. 1).

KATZMANN, J. The defendant, Gerald Williams, was convicted after a jury trial in Superior Court for unlawful possession of ammunition without an identification card, G. L. c. 269, § 10(h), and unlawful possession of a firearm, G. L. c. 269, § 10(a). He was also convicted after a subsequent offender, jury-waived, trial. New counsel then filed a motion for new trial. The motion

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was based solely on the judge's denial of a pretrial motion to suppress and did not advance ineffective assistance of counsel. The judge denied the new trial motion. [Note 1]

On direct appeal, the defendant is now represented by new counsel unaffiliated with either trial counsel or counsel who filed the motion for a new trial, and for the first time argues that his trial counsel's failure to challenge a juror for cause or exercise a peremptory challenge after that juror was seated amounts to ineffective assistance of counsel. In addition to his claim that trial counsel failed to challenge a racially biased and severely hearing impaired juror, the defendant also claims that trial counsel failed to offer a defense at trial, failed to argue the motion for a required finding of not guilty, and arrived late for court proceedings. We now consider the question whether the defendant, having not advanced ineffective assistance as a ground for a new trial in the one motion that his previous counsel did file, has waived the issue on this direct appeal. Under the circumstances here, we hold that he has not waived the claim. [Note 2]

Our review poses the intersection of two principles. First, reflecting the fact-intensive nature of the inquiry, our courts have long ruled that, as a general matter, in order to preserve and advance for appellate review a claim of ineffective assistance of counsel, a defendant should in the first instance file "a motion for a new trial accompanied by affidavits, with the potential for an evidentiary hearing and findings, . . . [to] permit[] us intelligently to measure defense counsel's performance under the standard of Commonwealth v. Saferian, 366 Mass. 89 (1974), and its progeny. . . . Where the record does not offer a sufficiently full portrayal of the various issues necessarily

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subsumed in such an analysis, a defendant's claim of ineffective representation must be rejected." Commonwealth v. McCormick, 48 Mass. App. Ct. 106 , 107-108 (1999). [Note 3] See Commonwealth v. Zinser, 446 Mass. 807 , 810-811 (2006).

The second principle is that "[u]nder art. 12 of the Declaration of Rights of the Massachusetts Constitution, a defendant possesses the right to be represented by effective counsel, Commonwealth v. Fuller, 394 Mass. 251 , 255- 256 (1985), which includes the right to the full and undivided loyalty of his attorney. Commonwealth v. Shraiar, 397 Mass. 16 , 20 (1986). Moreover, art. 12 entitles a defendant to unimpaired assistance of counsel free from any conflict of interest. See Commonwealth v. Shraiar, supra." Commonwealth v. Egardo, 426 Mass. 48 , 49 (1997).

Our courts have had occasion to consider the intersection of these two principles. Recognizing that "[i]t would be unrealistic to expect [the defendant's] first attorney to have raised a claim calling his own competence into question," Commonwealth v. Lanoue, 409 Mass. 1 , 3-4 (1990), the court has ruled that a defendant should not be penalized and held to have waived his right to press the ineffective assistance claim because of the default of that attorney. This reconciliation of the principles has governed a number of circumstances. Thus, in Commonwealth v. Lanoue, supra at 4, the court held that a defendant represented by the same attorney at trial and on direct appeal retained the right to seek review of his trial counsel's work, even though counsel had not asserted an ineffective assistance claim on direct appeal. See Haberek v. Commonwealth, 421 Mass. 1005 , 1005-1006 (1995); Commonwealth v. Azar, 435 Mass. 675 , 686 (2002). In Commonwealth v. Egardo, 426 Mass. at 49-50, the

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court held that the defendant retained an ineffective assistance of counsel claim not raised on direct appeal because he was represented by counsel from the same organization, Committee for Public Counsel Services (CPCS), at trial and on appeal. Accordingly, the defendant was permitted to file a subsequent motion for a new trial to allow consideration of the ineffective assistance of counsel claim. Ibid. See Breese v. Commonwealth, 415 Mass. 249 , 250 n.1 (1993).

We are thus presented here with a variation on a familiar theme. Although the factual circumstances in this case are different -- counsel from CPCS for the trial and different counsel from CPCS on the motion for new trial, with the ineffective assistance of counsel claim raised on direct appeal by a new attorney who was not affiliated with either prior counsel -- the force of the reasoning of Lanoue and its progeny is no less compelling. Because the defendant was represented by counsel for CPCS both at trial and on the motion for new trial -- and thus was deprived of "the benefit of a meaningful review by independent counsel of his claims of ineffective assistance of trial counsel," Commonwealth v. Pike, 53 Mass. App. Ct. 757 , 760 n.4 (2002) -- his claim was not waived despite the fact that it was only raised for the first time on direct appeal. [Note 4]

Notwithstanding the apparent shortcomings of trial counsel asserted in this appeal, we are unable to conclude from the record before us that the defendant is entitled to a new trial. The shortcomings remain only apparent at this point, and further factfinding is required to determine whether trial counsel's management of the case was the result of deliberate practical choices not "manifestly unreasonable." See Commonwealth v. Adams, 374 Mass. 722 , 728 (1978). Such factfinding should provide sufficient information upon which to base a reasoned decision whether counsel's performance was "measurably below

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that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. at 96.

For the above-stated reasons and the reasons stated in the companion memorandum and order issued this day pursuant to rule 1:28, see Commonwealth v. Williams (No. 2), post (2007), the order denying the motion for a new trial is affirmed, and the matter is remanded for further fact finding consistent with this opinion and Commonwealth v. Williams (No. 2), supra. This court shall retain jurisdiction pending filing of the findings.

So ordered.