Commonwealth v. Gordon, supra at 395, 974 N.E.2d 645. See Commonwealth v. Almonte, 84 Mass.App.Ct. 735, 738, 3 N.E.3d 596 (2014), We do not hold that a motion for new trial may never be granted without an evidentiary hearing. If the substantial issue raised by the motion is solely a question of law based on undisputed facts, an evidentiary hearing may not be necessary. Commonwealth v. Gordon, supra at 395, 974 N.E.2d 645. But if the motion does not raise a substantial issue, neither holding an evidentiary hearing nor granting relief is appropriate.
"The policy favoring the finality of just convictions imposes a 'rigorous standard' upon the discretionary allowance of motions under rule 30 (b)." Commonwealth v. Almonte, 84 Mass.App.Ct. 735, 738 (2014), quoting Commonwealth v. Berrios, 447 Mass. 701, 708 (2006), cert. denied, 550 U.S. 907 (2007)
Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "The policy favoring the finality of just convictions imposes a rigorous standard upon the discretionary allowance of motions under rule 30(b)," Commonwealth v. Almonte, 84 Mass. App. Ct. 735, 738 (2014) (quotation omitted), which should happen only in "exceptional situations." Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012).
In most cases, the decision whether to grant a motion under rule 30(b) cannot be reduced to hard and fast rules, but instead calls for the exercise of sound judicial discretion. See Commonwealth v. Almonte, 84 Mass. App. Ct. 735, 737-738 (2014) (Almonte). We review the decision on such a motion to determine whether the motion judge "committed an abuse of discretion or a significant error of law."
In most cases, the decision whether to grant a motion under rule 30(b) cannot be reduced to hard and fast rules, but instead calls for the exercise of sound judicial discretion. See Commonwealth v. Almonte , 84 Mass.App.Ct. 735, 737-738, 3 N.E.3d 596 (2014) ( Almonte ). We review the decision on such a motion to determine whether the motion judge "committed an abuse of discretion or a significant error of law."
This is equally true in the context of challenges involving the mandatory immigration consequences of a plea. See ibid.; Commonwealth v. Almonte, 84 Mass.App.Ct. 735, 739 n. 2 (2014). Because the judge considered the arguments on their merits, and because a signed affidavit was filed, we consider the matter on the merits as well.
Lys, 481 Mass. at 6. Although the defendant has made a substantial initial showing of prejudice, affidavits alone are not sufficient to resolve these issues. See Commonwealth v. Almonte, 84 Mass. App. Ct. 735, 738 (2014) (improper to grant motion without evidentiary hearing where defendant's affidavit contradicted green sheet and plea counsel's affidavit). Without an evidentiary hearing, "we do not have the benefit of any findings or credibility assessments made by the motion judge," especially with respect to whether the defendant would have rejected the plea and instead accepted jail time, had he been properly advised that the plea would make him deportable.
The decision to hold a hearing rests within the sound discretion of the trial judge. See Commonwealth v. Almonte, 84 Mass. App. Ct. 735, 738 (2014).Here, the defendant raises several challenges to counsel's performance which, he claims, deprived him of effective assistance of counsel. He asserts that (1) counsel's cross-examination of the Commonwealth witness elicited the only evidence on an essential element, i.e., a public way, (2) counsel failed to move to exclude evidence of his difficulty in answering questions at his booking, and (3) counsel failed to elicit evidence of the officer's mistaken belief that the defendant stored alcohol in an open container.
The guideline for its exercise is ‘whether a substantial issue necessitating a hearing’ has arisen from the submitted affidavit material." Commonwealth v. Almonte, 84 Mass. App. Ct. 735, 738 (2014), quoting from Commonwealth v. Shuman, 445 Mass. 268, 278 (2005). Where, as here, the defendant's new trial motion is presented to a motion judge who was also the trial judge, "we pay special deference" to the judge's decision.
The defendant has not demonstrated a "substantial issue" in factual dispute that would have warranted the holding of such a hearing. See Commonwealth v. Alemonte, 84 Mass. App. Ct. 735, 738 (2014), and cases cited.Judgment affirmed.