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Commonwealth v. McGrath

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 18, 2012
11-P-156 (Mass. Apr. 18, 2012)

Opinion

11-P-156

04-18-2012

COMMONWEALTH v. JOHN P. MCGRATH.


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, John P. McGrath, raises three issues in this appeal. We start first with the defendant's argument that there was insufficient evidence to support his conviction of operating a motor vehicle while under the influence of intoxicating liquor (OUI) as a subsequent offender. This argument is premised on an alleged absence of evidence of the defendant's identity presented during the subsequent offense trial.

The judge instructed the jury, without objection, 'The defendant was convicted by you of operating under the influence of liquor that occurred on October 17 when you returned a verdict of guilty. You are therefore to treat this fact as undisputed and proved.' Among the record evidence was a Registry of Motor Vehicles (RMV) notice of license suspension dated October 19, 2009, and issued to an individual named 'John P. McGrath,' which stated that the suspension was being applied because on October 17, 2009 -- the same date as that of the offense of which the defendant had been convicted -- the operator had a 'blood alcohol reading of .08 or above.' The suspension notice indicated not only the offender's name, but also his date of birth (02/12/58) and his operator's license number. The Commonwealth also introduced certified copies of the docket sheets from each of four prior convictions showing that John P. McGrath, with the same date of birth (February 12, 1958), was found guilty of OUI. The Commonwealth further introduced, as part of the certified driving history of 'John P. McGrath,' an RMV notice of license revocation dated December 16, 2002, indicating three prior 'DWI LIQUOR' convictions, as well as a document indicating a finding in the Plymouth Division of the District Court Department of 'DWI' on the date of the oldest of the four prior convictions (February 28, 1990). Both of these latter documents listed the same name, date of birth, and operator's license number as that found on the notice of license suspension. (The last document also indicated the divisions of the District Court Department and the dates of the findings for each of the three prior convictions matching, as the Plymouth notation did with respect to the 1990 conviction, the dates and courts indicated on the docket sheets submitted by the Commonwealth.)

John McGrath; John P. McGrath, Jr.; and John J. McGrath were the other iterations on the docket sheets, but all had the same birth date of February 12, 1958.

In determining sufficiency we must look at the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to the Commonwealth. See Commonwealth v. Olivo, 58 Mass. App. Ct. 368, 372 n.5 (2003). While the inference is perhaps not inescapable, we conclude there was sufficient evidence linking the defendant to these prior convictions to support his conviction at the subsequent offense trial.

The defendant next argues that one of the prior convictions was uncounseled. There is of course a presumption of regularity that applies to prior proceedings that resulted in a conviction. See Commonwealth v. Saunders, 435 Mass. 691, 695 (2002). In the face of evidence of presumptively regular convictions, a defendant must show 'the conviction in issue was obtained without representation by, or waiver of, counsel.' Id. at 696. The defendant here put forward no evidence at all, but simply argued before the trial judge that the absence of an indication of counsel on one of the docket sheets that listed a conviction on July 30, 1993, meant that the conviction was uncounseled.

Even if in some circumstances a gap in the Commonwealth's evidence could suffice to meet the defendant's burden, it did not do so here. The defendant pleaded guilty on July 30, 1993, before the same judge in the same court, to two OUI offenses. The docket sheet relating to one of those offenses indicates that the defendant had appointed counsel. In light of the fact that the defendant appeared before the same judge on the same day with counsel to plead to another charge of OUI, the presumption of regularity has particular strength, and we think the defendant was required to show more than an absence of an indication of counsel on the docket sheet with respect to the other guilty plea to demonstrate that the conviction was uncounseled.

Finally, as the defendant concedes, his third argument, asserting a violation of his Sixth Amendment rights through admission of a breathalyzer certification, is foreclosed by Commonwealth v. Zeininger, 459 Mass. 775, 786-789 (2011).

Judgment affirmed.

By the Court (Rubin, Brown & Hanlon, JJ.),


Summaries of

Commonwealth v. McGrath

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 18, 2012
11-P-156 (Mass. Apr. 18, 2012)
Case details for

Commonwealth v. McGrath

Case Details

Full title:COMMONWEALTH v. JOHN P. MCGRATH.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 18, 2012

Citations

11-P-156 (Mass. Apr. 18, 2012)