Opinion
21-P-362
04-07-2022
COMMONWEALTH v. Giovanni ANAYA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On April 8, 2004, the defendant, Giovanni Anaya, pleaded guilty to assault and battery, failure to stop for a police officer, and resisting arrest. On November 28, 2017, the defendant filed a motion for new trial seeking to withdraw his guilty plea to the resisting arrest offense on the basis that there were insufficient facts presented at the plea hearing to support his plea to that offense. After a hearing on the motion on December 7, 2018, the motion judge, who was not the plea judge, denied the motion, finding that the defendant had failed to provide sufficient and credible evidence to support his motion. The defendant now appeals from the order denying his motion for new trial. We affirm.
The defendant and the Commonwealth agree that the recording of the plea hearing is no longer available.
Discussion. A motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), is the proper vehicle by which to seek to vacate a guilty plea. Commonwealth v. Fernandes, 390 Mass. 714, 715 (1984). Under Mass. R. Crim. P. 30 (b), a judge may grant a motion for a new trial any time it appears that justice may not have been done. Commonwealth v. Scott, 467 Mass. 336, 344 (2014). We review a judge's decision on a motion for new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Allowance of the motion for a new trial is appropriate only in extraordinary circumstances. See Commonwealth v. Amirault, 424 Mass. 618, 645-647 (1997). On review, we bear in mind that the applicant for the new trial carries the burden of proof to rebut the presumption of an original fair trial or valid entry of a guilty plea. See Commonwealth v. Comita, 441 Mass. 86, 93-94 (2004).
On this record, we see no error of law or other abuse of the judge's broad discretion in his denial of the defendant's motion. Where the court records are unavailable, as is the case here, the defendant seeking to vacate a guilty plea bears an initial burden to rebut the presumption of regularity by raising a substantial issue supported by "sufficient credible and reliable evidence." Commonwealth v. Lopez, 426 Mass. 657, 665 (1998). The defendant has not met his burden of proof to rebut the presumption of regularity. The only evidence provided in support of his motion was an affidavit of the defendant in which he claims, "the prosecutor made a brief summary of the facts as described in the police report." The judge was not required to accept the defendant's self-serving affidavit, in his determination of whether the defendant had provided sufficient credible evidence to support his motion. See Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 637 (2001) (judge not required to accept defendant's self-serving affidavit as sufficient to satisfy defendant's burden).
The defendant did not submit an affidavit from the attorney who represented him at his plea hearing, nor did he provide an explanation why his attorney had not submitted an affidavit. See Commonwealth v. Hoyle, 67 Mass. App. Ct. 10, 11 (2006).
Even if we were to assume that the defendant's affidavit provided sufficient credible evidence to support his motion, we find the defendant's argument that the allegations contained in the police report were insufficient to support the resisting arrest conviction unpersuasive.
"A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by: (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another."
G. L. c. 268, § 32B (a ). Even if the police report was the only evidence presented, we conclude that the report, along with any reasonable inferences that may be drawn from the report, were sufficient to support the charge of resisting arrest.
"[A] judge accepting a guilty plea ‘is not required to determine whether the defendant is or is not guilty of the offense charged.’ Rather, a plea judge ‘need determine only whether the evidence which he had heard, plus any information he has obtained in the plea hearing, is sufficient, when considered with reasonable inferences which may be drawn therefrom, to support the charge to which the defendant is offering a plea of guilty’ " (citation omitted).
Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015), quoting Commonwealth v. Jenner, 24 Mass. App. Ct. 763, 773 (1987).
Here, the police report indicates that after the defendant led a police officer on a high-speed car chase, he abandoned the car he was operating and fled on foot with the officer in pursuit. During the foot chase, the officer grabbed the defendant's shoe and belt as the defendant attempted to climb over a fence and the defendant kicked the officer in the neck to get free and scale the fence. The defendant then kicked open an entry door to an apartment building and as he attempted to kick open a door to a first-floor apartment the officer caught up to the defendant. The officer took the defendant into custody after a struggle. The struggle resulted in large holes in several walls, and equipment and uniform damage. The plea judge was entitled to make the determination from the facts in the police report and reasonable inference drawn therefrom that the defendant understood the officer intended to place him under arrest, and that the defendant used force to prevent the arrest. See Armstrong, 88 Mass. App. Ct. at 758. The motion judge did not abuse his discretion in denying the defendant's motion.
Order denying motion for new trial affirmed.