Opinion
14-P-1542
01-14-2016
COMMONWEALTH v. CRISTIAN CASTILLO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial, without a hearing, of his fourth motion to vacate his guilty pleas (in 2007) to charges of assault and battery and assault and battery by means of a dangerous weapon. Based on the absence of an interpreter's signature on the "green sheet" and his own affidavit, the defendant argues that no Spanish language interpreter was present during the plea hearing and that, as a result, he did not understand the consequences of his pleas. The motion judge denied the motion on the ground of waiver because the defendant had failed to raise this issue in his three prior postconviction motions. We agree the claim was waived, but because the defendant's papers raised a substantial issue, we remand for a hearing and additional findings. In particular, we remand for findings concerning the credibility of the defendant's affidavit and concerning the judge's customary practices at the time that the defendant tendered his pleas.
This is the defendant's fourth motion to withdraw his pleas, and yet the first occasion on which he claims he was deprived of the assistance of an interpreter in violation of G. L. c. 221C, § 2. The motion judge, who was also the plea judge, correctly determined that, by failing to raise the issue in any of his previous motions, one of which was the subject of an earlier appeal to this court, see Commonwealth v. Castillo, 83 Mass. App. Ct. 1138 (2013), the argument was waived. See Commonwealth v. LeFave, 430 Mass. 169, 174 n.5 (1999) ("A motion judge's discretion under [Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001)] to grant relief from such a waiver is limited if the conviction has already received appellate review"). The defendant could -- and should -- have raised the interpreter issue earlier. See Commonwealth v. Amirault, 424 Mass. 618, 639 (1997); Commonwealth v. Chase, 433 Mass. 293, 297 (2001). See also Mass.R.Crim.P. 30(c)(2).
The recording of the plea hearing is unavailable, apparently having been destroyed, pursuant to rule 211(A)(4) of the Special Rules of the District Courts (1988), even before the defendant's first motion in 2009.
That said, we conclude that the motion should not have been denied without a hearing because the papers raised a substantial issue. See Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015) ("Only when the motion and affidavits raise a 'substantial issue' is an evidentiary hearing required" [citation omitted]). The absence of an interpreter when one is required is a significant issue with constitutional overtones. The defendant's affidavit stated that there was no interpreter in the court room when he tendered his pleas. "A judge is not required to accept as true the allegations in a defendant's affidavit, even if nothing in the record directly disputes them," Commonwealth v. Rzepphiewski, 431 Mass. 48, 55 (2000), or if the affidavit is uncontroverted. See Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 551 (2002). Here, however, the defendant's affidavit is potentially supported by the absence of an interpreter's signature on the "green sheet." Likewise, his statement that he needed an interpreter is buttressed by a notation to that effect on the docket sheet. On the other hand, as the Commonwealth points out, other aspects of the record, such as the fact that an interpreter assisted the defendant later on the same day, would support a finding that the absence of an interpreter's signature on the green sheet was an oversight rather than an indication that an interpreter was in fact not present at the plea hearing. We are in no position to resolve these conflicting inferences, or to assess the credibility of the defendant's affidavit. Commonwealth v. Vaughn, supra at 405 ("[T]he credibility, weight, and impact of [an] affidavit[] [is] entirely within the motion judge's discretion"). These are matters that would benefit from consideration and findings by the motion judge after hearing.
In addition, even where (as here) a judge has no present recollection of a particular plea that happened many years earlier, he may make and rely upon findings regarding his customary practices at the time of the plea hearing. These may include his usual practices regarding appointing interpreters when needed, see Commonwealth v. Gautreaux, 458 Mass. 741, 754 (2011), or regarding whether he would have accepted a plea from a non-English speaking defendant without an interpreter. See Commonwealth v. Yardley Y., 464 Mass. 223, 228-229 (2013) (proper for plea judge to rely on customary practice when reconstructing record). The motion judge in this case, having been the plea judge, is perfectly situated to make findings regarding his practices at the time.
We mean no criticism of the motion judge for not having made these findings in the first instance; the Commonwealth did not request them.
For these reasons, in light of the gravity of the claim of error and the potentially conflicting inferences that could be drawn from the record, we remand for a hearing on the motion and for further findings, including a finding as to whether the judge credits the defendant's affidavit. See Commonwealth v. Lopez, 426 Mass. 657, 661-662 (1998). We have not considered whether, and do not mean to suggest that, the defendant can, on this record, overcome the presumption that an interpreter was present at his plea proceedings. See Commonwealth v. Gautreaux, 458 Mass. at 754.
The order denying the defendant's motion to vacate his guilty pleas is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.
By the Court (Cypher, Wolohojian & Carhart, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 14, 2016.