Opinion
No. 11–P–230.
2012-11-7
COMMONWEALTH v. James IGOE.
By the Court (KAFKER, COHEN & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, James Igoe, appeals from the denial of his motion to withdraw his 1996 guilty pleas to two counts of indecent assault and battery without an evidentiary hearing. In support of his motion for a new trial, the defendant submitted an affidavit from the alleged victim recanting his allegations of sexual abuse by the defendant, as well as the defendant's own affidavit stating that his guilty pleas were not voluntary. In opposition, the Commonwealth submitted an unsworn report by an investigator for the district attorney's office recounting an interview with the alleged victim in which he stated that he had been pressured to sign the recantation and that it was false. The motion judge did not credit or discredit the alleged victim's recantation, but ruled that the defendant's admission of guilt during the plea colloquy precluded any claim of innocence based on new evidence. The judge then discredited the defendant's own “self-serving” affidavit concerning involuntariness, noting that it was “flatly contradicted by his prior statements acknowledging that he committed the charge[d] offenses and the favorable consequences the defendant secured as a result of the plea bargain.” A motion judge has discretion to grant a new trial “at any time if it appears that justice may not have been done.” Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The defendant bears the burden of “com [ing] forward with a credible reason which outweighs the risk of prejudice to the Commonwealth.” Commonwealth v. DeMarco, 387 Mass. 481, 486–487 (1982) (footnote omitted).
The Commonwealth, in a consolidated appeal, contends that the single justice abused her discretion in enlarging the defendant's time to file a notice of appeal pursuant to Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). Judicial economy and the importance of a defendant's rights are valid considerations on a motion for enlargement. See Commonwealth v. White, 429 Mass. 258, 264–265 (1999). Had the single justice denied the motion, the defendant would likely have made “yet another motion for postconviction relief based on the claim of ineffective assistance of counsel for failure to file the notice of appeal,” id. at 265, and the same issues would be presented in a slightly different context. The Commonwealth has identified no prejudice from the defendant's delay. See ibid. The single justice did not abuse her discretion in allowing the defendant's appeal to proceed.
A charge of rape of a child was dismissed in contemplation of the pleas.
“A postsentence motion to withdraw a plea is treated as a motion for a new trial.” Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000).
As the motion judge did not rely upon this report, we express no opinion whether it would have been appropriate to decide the motion based on unsworn hearsay. Compare Commonwealth v. Raymond, 424 Mass. 382, 397 (1997) (no error to discredit unsworn recantation of witness).
In this case, so far as appears from the record, the alleged victim's testimony would have provided the critical evidence of the defendant's crimes. Contrast Commonwealth v. Berrios, 447 Mass. 701, 710 (2006) (“the Commonwealth's evidence against the defendant remained strong, as [three others] had implicated the defendant”); Commonwealth v. Cash, 64 Mass.App.Ct. 812, 817–818 (2005) (other witnesses implicated defendant in crime). The defendant therefore proffered new evidence indicating that the charges against him were pure fabrications. Although guilty pleas bar challenges based on legal questions that the defendant could have raised prior to pleading guilty, they do not necessarily foreclose claims of factual innocence based on newly discovered evidence. See Commonwealth v. Zion, 359 Mass. 559, 563 (1971). Compare Commonwealth v. Berrios, supra at 709 (reversing allowance of new trial motion where judge “did not credit any portion of the defendant's testimony that would support a finding of exoneration”). Under the circumstances presented here, the motion judge could have considered whether “justice may not have been done” in light of the new evidence.
The motion judge was, of course, not obliged to accept the alleged victim's recantation at face value. See Commonwealth v. Thurston, 53 Mass.App.Ct. 548, 551 (2002) (motion judge “is not required to credit an affidavit even if it is undisputed”). However, given the sworn recantation of the critical evidence against the defendant, the judge was required to address the credibility of that recantation. On remand, the judge should assess whether the defendant has made a sufficiently compelling showing to warrant an evidentiary hearing on his new trial motion. See Commonwealth v. Gordon, 82 Mass.App.Ct. 389, 394–396 (2012). See also Commonwealth v. Chetwynde, 31 Mass.App.Ct. 8, 14 (1991) (evidentiary hearing warranted where confession that “was the centerpiece of the Commonwealth's case” might have been suppressed prior to guilty plea).
The order of the single justice dated September 23, 2011, is affirmed.
The order denying the motion for a new trial is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.