Opinion
No. 16–P–128.
11-04-2016
COMMONWEALTH v. Richard CROTTY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 1988, the defendant, Richard Crotty, pleaded guilty to the reduced charge of murder in the second degree. He was sentenced to life in prison, with eligibility for parole after fifteen years. In 2003, 2008, and 2014, the defendant was denied parole after hearings before the parole board.
In 2011, the defendant filed his first motion to withdraw his guilty plea, on different grounds from the motion at issue here. This motion was denied, and the denial was affirmed by this court on appeal. Commonwealth v. Crotty, 84 Mass.App.Ct. 1121 (2013). In this second motion to withdraw his guilty plea and for a new trial, the defendant alleges that he should be allowed to withdraw his plea because the Essex County District Attorney's office “breached the terms of the plea agreement” by opposing his release on parole and also provided false information to the parole board about statements made by the defendant during his plea colloquy. The defendant also claims that it was an abuse of discretion not to hold an evidentiary hearing to determine whether there was a transcript of the plea colloquy. A Superior Court judge denied this second motion without a hearing on the basis that it did not raise a substantial issue. The defendant appeals. We affirm.
Discussion. The defendant now claims that the motion judge abused his discretion by denying the defendant's motion without an evidentiary hearing on the basis that it did not raise a substantial issue. A motion to vacate a guilty plea is treated as a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). Commonwealth v. Furr, 454 Mass. 101, 106 (2009). A judge “may grant a new trial at any time if it appears that justice may not have been done.” Mass.R.Crim.P. 30(b). Such a motion is addressed to the sound discretion of the judge, and “[rule 30(b) ] encourages the denial of a motion for a new trial on the papers, without hearing, where no substantial issue is raised.” Commonwealth v. Gordon, 82 Mass.App.Ct. 389, 394 (2012). A judge should “only grant a postsentence motion to withdraw a plea if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth.” Commonwealth v. Hason, 27 Mass.App.Ct. 840, 845 (1989) (quotation omitted). The judge “may decide the motion based solely on the submitted affidavits, and the weight and credibility to be accorded those affidavits are within the judge's discretion,” and he “need not believe such affidavits even if they are undisputed.” Furr, supra at 106.
“[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor ..., such promise must be fulfilled.” Commonwealth v. Cruz, 62 Mass.App.Ct. 610, 611–612 (2004), quoting from Santobello v. New York, 404 U.S. 257, (1971). In this case, as in Cruz, “the fundamental flaw in the defendant's request for the enforcement of his plea agreement ... is that the record does not show that the prosecutor promised, as part of the plea agreement, not to [oppose parole].” Cruz, supra at 612. There is no record of the plea colloquy that took place twenty-eight years ago. The motion judge is “not required to accept the defendant's self-serving affidavit ... as sufficient to satisfy the defendant's burden ... to produce a credible reason [to withdraw the plea] which outweighs the risk of prejudice to the Commonwealth.” Commonwealth v. Lopez, 426 Mass, 657, 661–662 (1998) (quotation omitted). The motion judge did not abuse his discretion by denying the defendant's motion to withdraw his guilty plea and for a new trial.
Usually, the Commonwealth bears the burden of proving that a plea colloquy was properly conducted, but when, as here, the defendant “leaves his guilty plea[ ] unchallenged for a lengthy period of time, so that the contemporaneous record of the plea is lost ... the absence of a record ... may be directly attributed to the defendant's delay and may be said to be the defendant's fault.” Commonwealth v. Lopez, 426 Mass. 657, 661 (1998).
Order denying second motion to withdraw guilty plea and for a new trial affirmed.