Opinion
No. 12–P–571.
2013-04-2
COMMONWEALTH v. Jeffrey S. BRENNAN.
By the Court (KANTROWITZ, MEADE & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jeffrey S. Brennan, appeals from the denial in part of his motion to vacate twenty-five year old guilty pleas to five charges involving possession of firearms and ammunition and for a new trial. The motion judge allowed the motion as to one plea, to a charge of violation of G.L. c. 269, § 10( h )(for possession of a “zip gun”), and denied the motion as to the other pleas. We affirm.
Background. As a result of an accidental discharge in the defendant's home of a firearm which the defendant had no license to possess (his license had been revoked), the defendant's friend was rushed to a hospital with a gunshot wound to his head. Fortunately, he survived. On July 12, 1983, the defendant pleaded guilty to six charges arising out of this incident, including illegal possession of firearms and ammunition.
Two of the firearms charges were placed on file. On the remaining charges the defendant was sentenced to six-month terms to a house of correction, each of which was suspended for two years, and probation for two years, which he successfully completed. His 1990 motion to vacate the only felony conviction—possession of a dangerous weapon—was granted (a slingshot kept at home was not a dangerous weapon). On November 17, 2008, the defendant filed another postconviction motion, seeking to vacate the remaining convictions involving possession of a firearm and ammunition. The court granted the motion with respect to one conviction (a homemade zip gun did not meet the statutory definition of a firearm) but denied relief as to the remaining convictions. The defendant has appealed. We affirm. Discussion. “A motion for withdrawal of a guilty plea functions as a motion for a new trial,” Commonwealth v. Diaz, 75 Mass.App.Ct. 347, 350 (2009), and may be allowed at any time if it appears justice may not have been done. Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). Given the unexplained twenty-five year delay, the favorable sentencing disposition the defendant received for his convictions, and the fact that the defendant's allegations of ineffective assistance of counsel are supported by nothing but the defendant's own affidavit, with no affidavit from the plea counsel, who was apparently still practicing at the time, we cannot say that the motion judge's disposition “produced a manifestly unjust result.” Commonwealth v. Thurston, 53 Mass.App.Ct. 548, 551 (2002). See Commonwealth v. Hoyle, 67 Mass.App.Ct. 10, 12–13 (2006). The judge determined, and we agree, that the defendant failed to meet his burden to present credible and reliable evidence to rebut the presumption of regularity. See Commonwealth v. Lopez, 426 Mass. 657, 664–665 (1998). We also agree with the judge's assessment that the police report and the docket entries establish that justice was done in this case.
The defendant was charged with wrongful possession of a firearm without a firearm identification card, in violation of G.L. c. 269, § 10( h )(three counts), wrongful possession of ammunition without a firearm identification card, in violation of G.L. c. 140, § 129C, wrongful possession of a dangerous weapon in violation of G.L. c. 269, § 10, and wrongful possession of fireworks in violation of G.L. c. 148, § 39. The disposition of the charge involving fireworks is unclear and is not before us in this case.
Moreover, nothing prevented the defendant from raising the issues he raises here at the time of his earlier, 1990, motion to vacate the guilty plea to the charge of possession of a dangerous weapon (a sling shot). The passage of eighteen years from 1990 to the filing of the present motion in 2008 indicates that he was content with the result of his pleas. See Commonwealth v. Hoyle, 67 Mass.App.Ct. at 13. By failing to challenge his pleas within a reasonable time and failing to present a good reason for the delay in filing the latest motion, the defendant has waived his claims. See Commonwealth v. Amirault, 424 Mass. 618, 639 (1997).
The police report in this case includes statements from both the victim and the defendant made shortly after the incident which indicate that the victim was injured due to an accidental discharge of a Smith and Wesson revolver belonging to a neighbor and being cleaned by the defendant, Brennan, after Brennan, the victim, and the neighbor had returned from a shooting session at a local gun club.
Order denying motion to withdraw pleas in 66565, 66567, 66568, and 66570 affirmed.