Opinion
21-P-515
06-03-2022
COMMONWEALTH v. TIMOTHY M. DUDA.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, Timothy Duda, was charged with operating a motor vehicle while under the influence of liquor on December 30, 1991. On February 7, 1992, after his appointed counsel withdrew his appearance, the defendant signed a waiver of counsel and admitted to sufficient facts to support a conviction of operating a motor vehicle while under the influence of liquor. A judge in the District Court found him guilty and imposed a sentence of probation for the term of one year. On March 11, 2021, the defendant filed a motion for a new trial and postconviction relief, asserting that Commonwealth vs. Ananias, Mass. Sup. Ct., No. 1248CR1075, slip op. (Feb. 16, 2017) (Ananias), called into question the voluntariness of his decision to plead guilty. The motion was denied without a hearing. On appeal, the defendant argues that (1) his plea was not made voluntarily, knowingly, and intelligently because newly discovered evidence raised questions as to the reliability of his breathalyzer results; (2) the judge made insufficient findings of fact in denying his motion; and (3) the Appeals Court should vacate his plea in the interests of justice and as an exercise of its inherent authority over judgments.
Discussion.
1. Standard of review.
A motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), is the proper vehicle by which to seek to vacate a guilty plea. Commonwealth v. Fernandes, 390 Mass. 714, 715 (1984). Under rule 30 (b), a judge may grant a motion for a new trial any time it appears that justice may not have been done. Commonwealth v. Scott, 467 Mass. 336, 344, (2014). We review a judge's decision on a motion for new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Allowance of the motion for a new trial is appropriate only in extraordinary circumstances. Commonwealth v. Amirault, 424 Mass. 618, 645-647 (1997). On review, we bear in mind that the applicant for the new trial carries the burden of proof to rebut the presumption of an original fair trial or valid entry of a guilty plea. Commonwealth v. Comita, 441 Mass. 86, 93-94 (2004) .
"An admission to sufficient facts is treated as a plea of guilty." Commonwealth v. Rodriguez, 467 Mass. 1002, 1004 (2014) .
2. Guilty plea.
The defendant argues that his plea was not voluntary, knowing, and intelligent because the Ananias decision references newly discovered evidence that calls into question the validity of the breathalyzer evidence. "A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Grace, 397 Mass. at 305. Here, the defendant contends that the Ananias decision brought to light new evidence of law enforcement's deficient protocols in the certification and utilization of breathalyzer machines. However, the defendant's reliance on Ananias is misplaced because that decision specifically relates to the Alcotest 9510 breathalyzer for the time between June of 2014 and September 14, 2014. The record of the case here is no longer available due to the defendant's delay in challenging the plea proceeding. Only the docket sheet is available, there is no recording of the plea hearing, and there is no police report. Due to the defendant's delay, there is no record of what breathalyzer model was used in his case, and likewise no information exists in the record as to what protocols were in place for the use and certification of the breathalyzer used by the defendant in 1991. Thus we have no factual record upon which to permit a finding that the test given to this defendant was defective. The defendant did not meet his burden to establish either the existence of newly discovered evidence or any other basis for disturbing the plea.
We reject defendant's argument that the case against him without the breathalyzer evidence was weak because the allegation is based exclusively on the defendant's affidavit, which the lower court was not required to accept. Commonwealth v. Lopez, 426 Mass. 657, 661-662 (1998).
3. Lack of findings.
The defendant argues that the motion judge failed to make findings under rule 30 (b) and therefore the case should be remanded for a hearing and findings. "A judge's failure to make findings required by rule 30 (b) is 'not fatal . . . where the ultimate conclusion is clearly evident from the record,' Commonwealth v. Lanoue, 392 Mass. 583, 586 n.2 (1984), or where we are satisfied that 'on review of the whole case manifest injustice would [not] result,' Commonwealth v. Preston, 393 Mass. 318, 322 n.4 (1984)." Commonwealth v. Torres, 469 Mass. 398, 403 (2014). As explained above, the defendant's attempt to use Ananias was misplaced and did not warrant findings because it was clear, even on the limited available record, that Ananias was not applicable. No hearing or written findings were required.
We conclude there was no substantial error of law or abuse of discretion in the denial of the defendant's motion for new trial.
In light of our ruling we reject the defendant's invitation to vacate the defendant's plea in the interests of justice. See Comita, 441 Mass. at 93 ("Motions for a new trial are granted only in extraordinary circumstances").
Order denying motion for new trial affirmed.
The panelists are listed in order of seniority.