Opinion
16-P-98
03-07-2017
COMMONWEALTH v. Casimiro SEVERINO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant admitted to sufficient facts to support convictions on four charges, including concealing a motor vehicle to defraud an insurer (concealing to defraud), in violation of G. L. c. 266, § 27A, as amended through St. 1989, c. 334. As a result of his admissions, the charges were continued without a finding and ultimately dismissed in 2002. The defendant now appeals from an order of a District Court judge denying his second motion to vacate his admissions and for a new trial. He argues that all four of his admissions are facially void because G. L. c. 266, § 27A, prohibited the plea judge from entering a continuance without a finding on the one charge of concealing to defraud. We affirm.
Although the defendant's motion is titled "Motion to Vacate Convictions," in fact, the charges against him were dismissed after he successfully completed probation. As did the judge, we will treat the defendant's motion as one to vacate his admissions and for a new trial.
As the analysis for withdrawing an admission to sufficient facts is essentially the same as that for withdrawing a guilty plea, we use the terms "admission" and "plea" interchangeably.
Background . In April of 2000, the defendant admitted to sufficient facts on charges of concealing to defraud, defrauding an insurer, attempting to commit larceny, and making a false statement to police or the registry of motor vehicles alleging theft of a motor vehicle. The parties did not agree on a recommendation as to disposition and sentence: the Commonwealth recommended guilty findings on all counts, with a fifty-nine day sentence suspended for two years; and the defendant recommended continuances without findings on all counts. The judge accepted the defendant's recommendation, and the cases were continued without a finding for two years. In April of 2002, after the defendant's successful completion of probation, the charges were dismissed on the recommendation of the probation department.
Over nine years later, in August of 2011, the defendant filed his first motion to vacate his admissions, arguing that the admissions were not knowing and voluntary and that his plea counsel was ineffective. A different judge (the plea judge having retired) denied the motion, and a panel of this court affirmed in a memorandum and order under our rule 1:28. See Commonwealth v. Severino , 86 Mass. App. Ct. 1112 (2014).
The panel declined to consider the defendant's argument that his admissions were void under G. L. c. 266, § 27A, concluding that he waived the issue by raising it for the first time on appeal. See Severino , 86 Mass. App. Ct. 1112. In deciding the defendant's current motion, however, the judge found that the defendant had in fact raised the argument in a memorandum in support of his original motion. The parties accept the judge's finding, as do we, but ultimately it is not material to our analysis.
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In August of 2015, the defendant filed his current motion to vacate his admissions, arguing that all four admissions were void because the plea judge lacked authority under G. L. c. 266, § 27A, to enter a continuance without a finding on the concealing to defraud charge. See G. L. c. 266, § 27A ("A prosecution commenced under this section shall not be placed on file, or continued without a finding ..."). After a nonevidentiary hearing, the same motion judge found that, "even though the sentence on the [concealing to defraud charge] was unauthorized, it was recommended by the defendant, not the Commonwealth, and the defendant benefitted from the sentencing error." In addition, the judge determined that the defendant presented no evidence to support his assertion that his sentencing goals would have changed, and he would have chosen to go to trial, had the plea judge accepted the Commonwealth's recommendation of a guilty finding on the concealing to defraud charge. The judge thus denied the motion, concluding that "the unauthorized sentence given the defendant on one of the counts ... did not create a substantial [risk of a] miscarriage of justice."
Discussion . "A motion to vacate an admission to sufficient facts is treated as a motion for a new trial." Commonwealth v. Muniur M ., 467 Mass. 1010, 1011 (2014). We review a judge's denial of such a motion only to "determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Sylvester , 476 Mass. 1, 5 (2016), quoting from Commonwealth v. Lavrinenko , 473 Mass. 42, 47 (2015).
"A defendant generally may not raise any ground in a motion for new trial that could have been, but was not, raised at trial or on direct appeal." Commonwealth v. Chase , 433 Mass. 293, 297 (2001). Here, not only did the defendant fail to raise his argument under G. L. c. 266, § 27A, to the plea judge, he affirmatively invited the error of which he now complains by recommending a continuance without a finding on the count of concealing to defraud. He is therefore only entitled to a new trial if he can demonstrate that the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Brescia , 471 Mass. 381, 389 (2015).
The motion judge was within his discretion in concluding that the defendant did not meet his burden. It is true, as the Commonwealth concedes, that G. L. c. 266, § 27A, prohibited the plea judge from entering a continuance without a finding on the concealing to defraud charge. But as the motion judge determined, the defendant failed to prove that he would have withdrawn his admissions and gone to trial had the plea judge instead accepted the Commonwealth's recommendation of a guilty finding on that charge. See Brescia , 471 Mass. at 389 (substantial risk of a miscarriage of justice standard requires the defendant to demonstrate "a serious doubt whether the result of the trial might have been different had the error not been made," quoting from Commonwealth v. Randolph , 438 Mass. 290, 297 [2002] ). The judge found the defendant's assertion to be "speculative at best and unsupported by any substantive evidence." That determination was within the judge's sound discretion. See Commonwealth v. Furr , 454 Mass. 101, 106 (2009) (judge has discretion to determine "weight and credibility to be accorded" evidence submitted with motion for new trial).
Furthermore, the judge permissibly found that the defendant failed to demonstrate a substantial risk of a miscarriage of justice because the error worked to his benefit. The error allowed the defendant to receive a favorable disposition of a continuance without a finding on the concealing to defraud charge, ultimately resulting in dismissal of the charge. The defendant fails to explain why an error that he invited and from which he benefited entitles him now, over fifteen years later, to withdraw his admissions irrespective of the risk of prejudice to the Commonwealth. See Commonwealth v. Lopez , 426 Mass. 657, 662 (1998) (defendant has burden to produce "a credible reason [to withdraw the plea] which outweighs the risk of prejudice to the Commonwealth," quoting from Commonwealth v. Fanelli , 412 Mass. 497, 504 [1992] ). Accord Commonwealth v. DiCicco , 470 Mass. 720, 735 (2015). We are satisfied that these circumstances present no substantial risk of a miscarriage of justice.
Order denying motion to vacate admissions and for new trial affirmed .