Opinion
11-P-296
12-19-2011
COMMONWEALTH v. JUAN MEDINA, JR.
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 appeals from the denial of his motion to withdraw his guilty plea and for a new trial, and his motion for an evidentiary hearing. We affirm.
Background. On December 23, 1998, the defendant was charged in the District Court with the offenses of possession of cocaine with intent to distribute, possession of cocaine with the intent to distribute within 1,000 feet of a school, and resisting arrest. On August 10, 1999, the defendant entered a plea of guilty to possession of cocaine with the intent to distribute and was sentenced to two years in the house of correction. The remaining charges were dismissed. On May 10, 2010, the defendant filed a motion to withdraw his plea and for a new trial. The defendant attached several affidavits to the motion. The affidavit of appellate counsel established that the recording of the plea colloquy was no longer available and that the defendant's trial counsel had been suspended from the practice of law and could not be located. The defendant also attached his own affidavit as well as the affidavits of two women who were present when the defendant was arrested. On the same date, the defendant filed a motion for an evidentiary hearing on his motion to withdraw his plea and for a new trial.
We note that, by virtue of his plea, the defendant escaped the possibility of being convicted of the school zone charge, which carries a two year minimum mandatory sentence that must be served from and after the predicate sentence.
The judge who presided over the defendant's change of plea has since retired, and the motion to withdraw the plea and for a new trial was heard by a different judge. The motions were heard on August 25, 2010. On September 22, 2010, in a detailed ruling, the judge denied the motion to withdraw the guilty plea and the motion for an evidentiary hearing.
Discussion. The gist of the defendant's argument is that he was deprived of the effective assistance of counsel by virtue of trial counsel's failure to file a motion to suppress. In support of this claim, he has filed the aforementioned affidavits and has included the police report that describes the details of his arrest. In his findings and rulings, the motion judge properly noted that in order to prevail upon this claim, the defendant must show that the actions or inactions of trial counsel 'deprived the defendant of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant must further demonstrate a likelihood that the motion would have been successful. Commonwealth v. Comita, 441 Mass. 86, 93 (2004).
We have reviewed the police report and agree with the motion judge that the events leading up to the defendant's arrest would have justified the plain view discovery of cocaine. We also agree with his analysis that the self-serving affidavits, filed more than eleven years after the defendant's guilty plea, do not meet his burden of showing that the motion to suppress would likely have been allowed.
For these reasons, the motion judge properly denied the defendant's motion to withdraw his plea and for a new trial, and his motion for an evidentiary hearing.
Order denying motion to withdraw guilty plea and for new trial, and motion for evidentiary hearing, affirmed.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),