Opinion
No. 11–P–963.
2012-09-19
COMMONWEALTH v. Damien GALLOWAY.
By the Court (CYPHER, KAFKER & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On February 3, 2006, the defendant, Damien Galloway, pleaded guilty to resisting arrest. The defendant now appeals from the denial of his motion for a new trial on the basis that he did not receive a proper colloquy at the time of his plea. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The defendant claims that the proffer given by the prosecution during the colloquy did not set forth sufficient facts to make out the resisting arrest charge, and that he was not advised of all of the elements of this offense.
On this same date the defendant also pleaded guilty to unlawful possession of a firearm and carrying a firearm. These convictions are not part of this appeal.
Given the five-year delay between the defendant's guilty plea and his motion for a new trial, the tape recording of the plea colloquy was no longer available for review. In support of his motion, the defendant relied solely on the affidavit submitted by his plea attorney, Shannon McAuliffe. In her affidavit, Attorney McAuliffe claimed that the facts contained in the police report constituted the sole basis for the guilty plea and that it was “standard practice” for the assistant district attorney to read the police report when reciting the factual basis for a guilty plea. She also stated that she did not recall that the motion judge explained the elements of resisting arrest to the defendant, that she herself did not explain to the defendant all of the elements of the resisting arrest charge, and that at the time she was focused on a more serious gun possession charge confronting the defendant. Attorney McAuliffe's assertion that she failed to advise the defendant of all the elements of the resisting arrest charge is not of concern on this appeal. The defendant failed to submit his own affidavit alleging that he was not informed by counsel of all of the elements of the charge or that he was prejudiced from his counsel's deficient performance. When a defendant “challenges a guilty plea” after a lengthy delay and where court records have been destroyed pursuant to court rules, the defendant must present evidence to rebut the presumption of regularity that the plea proceeding was conducted correctly. See Commonwealth v. Grannum, 457 Mass. 128, 132–133 (2010); Commonwealth v. Lopez, 426 Mass. 657, 661–662 (1998). “The decision to deny a motion for a new trial lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or the trial was infected with prejudicial constitutional error.” Commonwealth v. Medina, 430 Mass. 800, 802 (2000).
The recording of the plea colloquy, held on February 3, 2006, has been destroyed pursuant to Rule 308(4) of the Boston Municipal Court Special Civil Rules (1989). See Rule 15 of the Boston Municipal Court Special Criminal Rules (1989).
Specifically, Attorney McAuliffe claimed she failed to explain the Commonwealth's requirement to prove that the defendant used or threatened to use physical force or violence against a police officer or used any other means which creates a substantial risk of causing bodily injury to a police officer. G.L.c. 268, § 32B.
The defendant has failed to present any evidence to rebut the presumption of regularity. During the hearing, the motion judge expressly discredited Attorney McAuliffe's contention that it was standard practice for prosecutors to read verbatim the police reports when establishing the factual basis for a guilty plea, stating “[s]ome read and some don't. Usually the ones that read it verbatim don't know what the case is about; that's why they have to read it off, okay. So to make a statement like that is not true.” Further, Attorney McAuliffe called into question her own recollection of the relevant part of the colloquy by admitting that she was more focused on the defendant's gun possession charge. Although the motion judge expressed high regard for Attorney McAuliffe's competence as counsel, it was within his discretion to discredit her affidavit and find that no substantial issue was raised by the defendant. Commonwealth v. Lopez, supra at 663. We find no abuse of such discretion.
Order denying motion for new trial affirmed.