Opinion
No. 12–P–457.
2013-05-9
COMMONWEALTH v. Joseph H. NOLAN.
By the Court (MEADE, MILKEY & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In two separate proceedings in 2000, the defendant pleaded guilty to two counts of assault and battery, assault and battery by means of a dangerous weapon, and larceny in an amount less than $250. In 2011, in motions for a new trial, the defendant moved to withdraw those guilty pleas in both cases. Initially, the motions were allowed, but upon reconsideration, they were denied, and the defendant appeals from the orders denying his motions. We affirm.
The records of the proceedings no longer exist given the passage of time. In this circumstance, the defendant must present evidence to rebut the presumption of regularity that the plea proceedings were conducted correctly. See Commonwealth v. Lopez, 426 Mass. 657, 661–662 (1998); Commonwealth v. Grannum, 457 Mass. 128, 132–133 (2010). To meet his burden, the defendant submitted an affidavit in which he averred that he could not recollect the elements of the crimes being made known to him by any of the three traditional methods. See Commonwealth v. Sherman, 451 Mass. 332, 335 (2008), quoting from Commonwealth v. Colantoni, 396 Mass. 672, 679 (2012). In one of the defendant's cases, the defendant also submitted an affidavit from an attorney in an unrelated case, who did not represent the defendant. In the affidavit, the attorney claimed the judge (who was one of the judges who took the defendant's pleas) conducted an insufficient colloquy in the unrelated case. Finally, the defendant noted that the plea judges did not sign the judge's certification on the “green sheet.” These submissions did not carry the defendant's burden. The motion judge was not required to credit the defendant's affidavit regarding what he could not recall. See Commonwealth v. Duest, 30 Mass.App.Ct. 623, 631 (1991). See also Bond v. Cutler, 7 Mass. 205, 206 (1810) (“[A] want of recollection of a fact, which, by due attention, might have been remembered, cannot be a reasonable ground for granting a new trial. For a want of recollection may always be pretended, and may be hard to be disproved”). Nor was the judge required to credit the affidavit of an attorney from an unrelated case. See Commonwealth v. Hoyle, 67 Mass.App.Ct. 10, 11–12 (2006); Commonwealth v. Haskell, 76 Mass.App.Ct. 284, 294–295 (2010). In addition, although the judges did not sign the certificate portions of the green sheets, they did check and sign section II of the forms. The defendant himself also signed the forms indicating that his pleas were intelligent and voluntary. That the judges did not sign both sides of the forms does not entitle the defendant to relief. It was not an abuse of discretion for the judge to have denied the motions.
Orders denying motions for new trial and to withdraw guilty pleas affirmed.