Opinion
No. 15–P–945.
10-06-2016
COMMONWEALTH v. Steven KIDNEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order vacating the defendant's twenty-two year old guilty plea to operating a motor vehicle while under the influence of intoxicating liquor, subsequent offense. Concluding that the defendant has failed to overcome “the presumption of regularity attendant to a distant plea proceeding,” Commonwealth v. Cartagena, 466 Mass. 1021, 1023 (2013), we reverse.
After his plea in 1992, the defendant was sentenced to ninety days in the house of correction, suspended for two years. After the defendant's successful completion of probation in March of 1994, the case was closed. Over two decades later, on September 29, 2014, the defendant filed a motion for new trial seeking to vacate his guilty plea. The defendant claimed that his plea was constitutionally infirm because, as he averred in the affidavit attached to his motion, “neither the judge nor [his] attorney informed [him] that [he] was presumed to be innocent and that [he] had these rights [i.e ., the right to a jury trial, the right to confront the witness against him, and the privilege against self-incrimination], never mind that [he] would be waiving them by entering into the plea.” The defendant also included a copy of the case docket with his new trial motion.
The motion judge, who was not the plea judge (the plea judge having retired), conducted a nonevidentiary hearing on the defendant's motion. After argument, the judge took the matter under advisement. The judge later allowed the defendant's new trial motion by notation in the margin of the motion. The judge made no findings.
A defendant's motion to vacate his guilty plea is made pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), and is treated as a motion for new trial. See Commonwealth v. Pingaro, 44 Mass.App.Ct. 41, 48 (1997). We review the granting of a motion for a new trial “only to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Grace, 397 Mass. 303, 307 (1986). A new trial may be granted “only ‘if it appears that justice may not have been done.’ “ Commonwealth v. DeArco, 387 Mass. 481, 482 (1982), quoting from Mass.R.Crim.P. 30(b). The motion judge is to apply this standard “rigorously.” Id. at 487.
Where the court records are unavailable due to the passage of time, as is the case here, the defendant seeking to vacate a guilty plea bears an initial burden to rebut the presumption of regularity by raising a substantial issue supported by “sufficient credible and reliable evidence.” Commonwealth v. Lopez, 426 Mass. 657, 665 (1998). The motion judge must look at both the seriousness of the issue and the showing made by the defendant to determine whether the issue is “substantial.” Commonwealth v. Stewart, 383 Mass. 253, 257–258 (1981). If the defendant meets his initial burden, the burden will then shift to the Commonwealth to establish that the plea was constitutionally valid. See Lopez, supra.
The defendant contends the burden shifted to the Commonwealth to establish the validity of his guilty plea when the judge ordered a hearing on his motion and, because the Commonwealth failed to meet that burden, the motion judge properly vacated his guilty plea. We disagree.
“In reviewing the defendant's claim we regard ourselves in as good a position as the motion judge[, who was not the plea judge,] to assess the record.” Commonwealth v. Brown, 470 Mass. 595, 602 (2015), quoting from Commonwealth v. Wright, 469 Mass. 461 (2014). Here, the only support the defendant proffered with his new trial motion was a copy of the docket and his own affidavit. See Pingaro, supra at 49. Standing alone, the defendant's “naked claim that he did not receive a constitutionally adequate guilty plea colloquy does not automatically thrust upon the Commonwealth the burden of proving the existence of a contemporaneous record establishing that the plea was entered knowingly and voluntarily.” Ibid.
The defendant did not attach affidavits from plea counsel or the plea judge, both of whom are living, or “from other attorneys who practiced before the plea judge during the relevant period.” Commonwealth v. Cartagena, 466 Mass. 1021, 1021 (2013). Nor did he provide an affidavit from the defendant's motion counsel describing his attempts to reconstruct the plea record or, at the very least, an explanation of why there was no affidavit from his lawyer. We view the lack of a diligent effort by the defendant to engage in such reconstruction a “circumstantial indicium of unreliability” in the defendant's motion. Pingaro, supra at 52 n.16.
Furthermore, we see no “apparent disarray” in the docket from which the motion judge could have concluded that the presumption of regularity did not “operate with its customary force.” Commonwealth v. Szargowicz, 77 Mass.App.Ct. 498, 504 (2010). Contrary to the defendant's contention, the absence of a notation on the docket indicating that the defendant intelligently and voluntarily waived his jury trial rights does not lend credence to his claim that these rights were not given, as there is nothing to suggest that such a notation would have appeared on the docket as a matter of routine practice. Contrast Cartagena, supra at 1022 (“[T]he judge's recollection in this case that his customary practice during the relevant period regarding plea colloquies was not regular or consistent with applicable law should be considered some indication that the proceedings may have been flawed”). See Lopez, supra at 663. The docket entry indicating that the defendant offered an admission to sufficient facts rather than a guilty plea is also of no consequence, as other counts were so disposed.
In sum, the record before the motion judge did not raise a substantial issue warranting further inquiry. See Pingaro, 44 Mass.App.Ct. at 50–51. Accordingly, we conclude the defendant was not entitled to an evidentiary hearing in which the burden shifted onto the Commonwealth and, further, the judge abused his discretion in allowing the defendant's motion to vacate his guilty plea.
Order allowing motion for new trial reversed.