Opinion
No. 12–P–634.
2013-05-9
COMMONWEALTH v. Michael P. VINING.
By the Court (GRAHAM, GRAINGER & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1: 28
The defendant, Michael P. Vining, appeals from a District Court judge's denial of his motion to withdraw pleas of guilt or admissions to facts sufficient for findings of guilt submitted thirty-eight years before. For the following reasons, we affirm the denial.
Factual background. By affidavit the defendant alleges the following. On Thanksgiving morning, November 22, 1973, he attended a high school football game. An unknown individual at the game inappropriately placed his hands on the body of his girlfriend. Vining confronted him; a fight broke out; the defendant suffered punches, kicks, a knock down, and arrest by the police.
District Court complaints charged him with (1) three counts of assault and battery by means of a dangerous weapon (shod foot), and (2) one count of idle and disorderly conduct. He retained an attorney to represent him. The charges proceeded to a disposition in District Court in December of 1973. The defendant's understanding is that he admitted to charges of simple assault and of disorderly conduct, and received a continuance without a finding on all four counts for a period of one year; that he served probation for one year successfully, and then achieved dismissal of all four charges.
Certified copies of the dockets show that the court reduced the three counts of assault and battery by means of a dangerous weapon to assault and battery on a police officer; that a finding of guilt entered upon each of those counts; and that the judge imposed a sentence of one year at the house of correction, suspended for one year with probation for one year, and thereafter discharged the defendant from probation on or about December 10, 1974. (A finding of guilt resulted also upon the charge of idle and disorderly conduct; it appears to have been filed.)
Since the mid–1970's, the defendant maintained a license to carry firearms in Massachusetts. In 2011 he applied to the Stoneham police department for a regular renewal of his license. By letter of September 30, 2011, the Stoneham chief of police notified him of the denial of his renewal application for a license to carry under G .L. c. 140, § 131, by reason of a disqualifying criminal conviction: guilt of the offense of assault and battery upon a police officer as entered in the 1973 criminal proceedings. The chief directed Vining to surrender his existing license and all firearms. He complied with that order. Until that time, he allegedly had understood that the 1973 charges had resulted in continuances without a finding and dismissal, and not in any conviction of a felony.
Through counsel he has now moved for a new trial pursuant to Mass . R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), and sought to withdraw any pleas or admissions in the 1973 proceedings. A District Court judge, other than the one who had presided at the proceedings thirty-eight years before, denied the motion without a hearing. The defendant has pursued a timely appeal to this court.
Analysis. On appeal, the defendant argues (1) that, as a matter of law, the 1973 judge improperly amended, or permitted the amendment of, the charges of assault and battery by means of a dangerous weapon to charges of assault and battery upon a police officer; and (2) that, as a matter of fact or evidence, he has now presented a substantial question of his knowing or intelligent plea or admission to guilt of assault and battery upon a police officer.
1. Standard of review. A motion proposing the withdrawal of a plea or admission has the character of a motion for a new trial under Mass.R.Crim.P. 30(b). See Commonwealth v. Huot, 380 Mass. 403, 406 (1980); Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992). The appellate court reviews the denial of a motion for a new trial pursuant to rule 30(b) “only to determine whether there has been significant error of law or other abuse of discretion.” Commonwealth v. Grace, 397 Mass. 303, 307 (1986); Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006). See Commonwealth v. Calendario, 446 Mass. 847, 859 (2006). If, as here, the motion judge did not serve as the trial judge, and no evidentiary hearing was held on the motion, the reviewing court need not extend special deference to the motion judge's determinations of credibility and fact, and may assess the motion papers presentation of fact and law as effectively and as directly as the motion judge. See Commonwealth v. Grace, 397 Mass. at 307.
Therefore, we may address the rule 30(b) motion solely upon the basis of the affidavit material and verified exhibits, and upon the strength of the legal arguments. We may discredit untrustworthy factual materials. An applicant's request for an evidentiary hearing requires the presence of “a substantial issue” and the support of that issue “by a substantial evidentiary showing.” Commonwealth v. Lopez, 426 Mass. 657, 663 (1998), quoting from Commonwealth v. Stewart, 383 Mass. 253, 260 (1981). “If the theory of the motion, as presented by the papers, is not credible or not persuasive, holding an evidentiary hearing to have the witnesses repeat the same evidence (and be subject to the prosecutor's cross-examination further highlighting the weaknesses in that evidence) will accomplish nothing.” Commonwealth v. Goodreau, 442 Mass. 341, 349 (2004). Under this standard of review, we conclude, first, that the defendant has not presented a persuasive contention of law; and second, that his factual position is not credible.
2. Legal issue. The defendant argues that the original judge lacked authority to amend the charges of the complaint, or in effect to reduce the charges from assault and battery by means of a dangerous weapon to assault and battery upon a police officer. In an argument commendable for vigor and thoroughness, the defendant acknowledges that G.L. c. 277, § 35A (repealed in 1979 and replaced by Mass.R.Crim.P. 4[d], 378 Mass. 849 [1979] ), applied to the 1973 proceeding:
“Upon motion of the district attorney or prosecuting officer, the court may order the complaint or indictment amended in relation to allegations or particulars as to which the defendant would not be prejudiced in his defen [s]e.”
The docket entries indicate that the court “reduced” the three charges. The defendant hypothesizes that the judge did so without authority and in violation of law. However, from the circumstances (discussed further below) we draw from the available record the compelling inference that the prosecution and the defendant agreed to the reduction of charges as a benefit to the defendant and that the judge accepted the agreed reduction as a matter of sound authority and discretion. No error arises from the amendment and reduction of the charges. The contention is unpersuasive.
3. Factual basis. The defendant's claim of an unintelligent or mistaken submission of pleas is not credible for the following reasons.
(a) No recording or transcript of the 1973 proceedings is available. In that circumstance, we apply a presumption of regularity of those proceedings. Commonwealth v. Lopez, 426 Mass. at 662. That is, we presume that the defendant submitted any plea with the benefit of a full colloquy from the judge and with the judge's satisfaction as to the voluntary and intelligent nature of the plea.
(b) The defendant had representation by counsel in the 1973 proceedings. He would have received the benefit of his attorney's advice.
(c) The “reduction” of the charges was substantial and beneficial for the defendant. In 1973, the charge of assault and battery by means of a dangerous weapon under G.L. c. 265, § 15A, exposed a defendant to confinement at a house of correction for a period up to two and one-half years, or to confinement at State prison for a period up to ten years. It was a felony. G.L. c. 274, § 1. By contrast, the charge of assault and battery upon a police officer, under G.L. c. 265, § 13D, as appearing in St.1973, c 839, exposed the defendant to a sentence of confinement at a house of correction for not less than ninety days but not more than two and one-half years. It carried no penalty of incarceration at State prison. It was a misdemeanor. G.L. c. 274, § 1.
(d) The defendant's claim (i) that he did not know any persons allegedly assaulted and battered by him to be police officers, and (ii) that he would therefore not have admitted to that element of the offense in the course of a colloquy with the judge, is not plausible or credible. The incident took place at a public event at which typically police would appear on duty and in uniform.
(e) Finally, if the defendant were concerned about eligibility for firearm licensure at the time of the 1973 proceedings, he would have received substantial benefit from the reduction of charges under the then-applicable laws. At that time, a license to carry firearms under G.L. c. 140, § 131, as appearing in St.1972, c. 415, was not available to a convicted felon.
The defendant's acceptance of the specific reduction would have eliminated the danger of any felony conviction and kept him in compliance with the requirements of the licensure statute. That advantage would have constituted a strong motivation for intelligent acceptance of the reduction of charges.
Also at that time a firearm identification card, in accordance with G.L. c. 140, § 129B, as amended through St.1972, c. 312, § 1, required (i) the absence of any conviction of a felony within the five years preceding application, and (ii) the absence of release from confinement for a felony conviction within that same five-year span.
The amendment of the relevant licensure requirements of § 131 and the resulting stringency now disqualifying the defendant from eligibility for firearm licensure did not occur until 1998. By St.1998, c. 180, § 41, the Legislature created § 131( d )(i), which disqualified any applicant who “has ... been convicted ... of ... ( c ) a violent crime.” (The 1998 enactment created an identical disqualifier as to applicants for a firearm identification card. See G.L. c. 140, § 129B [1] [i][ c ], as appearing in St.1998, c. 180, § 29.) The statute assimilated the meaning of “violent crime” from G.L. c. 140, § 121, as simultaneously amended by St.1998, c. 180, § 8, to “mean any crime punishable by imprisonment for a term exceeding one year” and containing “as an element the use ... of physical force ... against the person of another.” The offense of assault and battery upon a police officer meets the definition of a “violent crime” introduced by the 1998 amendment. That amendment would apply to any application for renewal of licensure by the defendant after the effective time of the amendment. It would have played no part in his plea or admission decision in the 1973 proceeding.
Conclusion. For these reasons, we affirm the order denying the motion for postconviction relief.
So ordered.