Opinion
14-P-1159
09-15-2015
COMMONWEALTH v. KENNETH A. HARRIS, JR.
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, acting pro se, appeals from an order by a judge of the District Court denying his motion to withdraw his guilty pleas and for a new trial. He argues that his 2002 guilty pleas were not knowing or voluntary because, at the time of the pleas, he was not informed by the judge or plea counsel that he was pleading guilty to separate offenses arising from three different incidents, rather than three charges arising from the same incident. As a result, he contends, he never received true notice of the nature of the charges. We affirm.
On March 6, 2002, the defendant pleaded guilty to three complaints, charging offenses alleged to have occurred on three different days. According to each docket sheet, the judge gave a plea colloquy and immigration warnings, pursuant to G. L. c. 79, § 29D, at the time of the pleas. On July 10, 2014, the defendant filed a motion to withdraw the pleas and for a new trial. The motion was denied without a hearing. The defendant's affidavit in support of the motion stated that his attorney never informed him that he would be pleading guilty to separate and different charges stemming from different incidents at any time during the discussions prior to his plea tender. The defendant claims he was told that, if he pleaded to the one offense of carrying a firearm without a license he would receive a one year sentence, and the sentence for the "other offenses, which [he] always thought were for the same incident," would run concurrently. The defendant also claimed that his attorney agreed at the plea hearing to waive the reading of the facts contained in the three police reports, agreeing instead to plead guilty based on the "faces of the complaints." The record contains neither an affidavit from plea counsel nor any explanation why it is absent.
Complaint 0215 CR 0854 charged the defendant with carrying a firearm without a license and possession of a firearm without a firearms identification card on February 1, 2002; complaint 0215 CR 0823 charged him with assault by means of a dangerous weapon, threatening to commit a crime, and carrying a firearm without a license, all on January 30, 2002, and complaint 0215 CR 081011 charged the defendant with two counts of assault by means of a dangerous weapon on January 29 and January 30, 2002, respectively.
The defendant also indicated in his supporting affidavit that, due to the three separate incidents and the related convictions in the District Court, his most recent guilty plea tendered in Federal District Court would result in an enhanced sentence.
On June 11, 2014, the defendant's motion for a free transcript of his guilty pleas was denied. On June 19, 2014, he received notice from the District Court that (1) because of a flood in the courthouse, his file, containing police reports of the incidents charged, had been destroyed, (2) three separate docket sheets were being forwarded to him indicating that "the cases did not arise from the same offense," and (3) the March 6, 2002, transcript was no longer available.
On appeal, the defendant argues that the judge erred in denying his motion to withdraw his guilty pleas, asserting that neither the judge nor his attorney had informed him that he was pleading guilty to charges arising from three separate incidents. He also contends the plea colloquy did not adequately ensure that his plea was intelligently or voluntarily offered.
"A motion to withdraw 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 such a motion "if it appears that justice may not have been done." Mass.R.Crim.P. 30(b). "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." Furr, supra. "The motion 'is addressed to the sound discretion of the trial judge, and . . . will not be reversed unless it is manifestly unjust, or unless the [proceeding] was infected with prejudicial constitutional error.'" Ibid., quoting from Commonwealth v. Colon, 439 Mass. 519, 524 (2003).
Here, due to the significant lapse of time and lack of court records, "[t]he presumption of regularity and the policy of finality . . . come into play." Commonwealth v. Hoyle, 67 Mass. App. Ct. 10, 14 (2006), quoting from Commonwealth v. Grant, 426 Mass. 667, 671 (1998). "This presumption of regularity, normally afforded collateral review of proceedings in which the record has been lost or destroyed, stands, unless and until a defendant advances countervailing credible and persuasive evidence sufficient to rebut that presumption." Id. at 14-15. The defendant has failed to present the requisite evidence here. His supporting affidavit alone, with accusations of error by the judge and misinformation by plea counsel, is not sufficient to rebut this presumption of regularity and, as noted, is contradicted by the record before us. Id. at 15. In addition, the judge was entitled to draw a negative inference from the fact that there was no affidavit from plea counsel and no explanation for its absence. See Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004).
In light of the foregoing, we see no error and certainly no abuse of the judge's considerable discretion when she denied the defendant's motion to withdraw his guilty pleas and for a new trial.
Order denying motion to withdraw guilty pleas and for a new trial affirmed.
By the Court (Grainger, Hanlon & Carhart, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 15, 2015.