Opinion
14-P-884
05-06-2015
COMMONWEALTH v. MICHAEL J. PATTI.
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
In February, 1985, the defendant, Michael J. Patti, pleaded guilty to indecent assault and battery on a child under the age of fourteen. G. L. c. 265, § 13B. On November 12, 2013, nearly thirty years later, the defendant filed a motion for a new trial and to withdraw his guilty plea. His motion was based on (1) the victim's affidavit in which she claims she was "pressured to testify that Michael Patti sexually assaulted [her] [but] [h]e did not" and (2) his own contention that his plea was not knowing, intelligent, and voluntary because he did not know he was waiving his right to a jury trial, the right to confront witnesses, and the privilege against self-incrimination, as the plea judge did not so inform him. The motion judge denied the motion without a hearing based on the Commonwealth's argument that the affidavits were not credible. His motion for reconsideration was also denied. On appeal, the defendant contends that the judge abused her discretion by denying his motion without an evidentiary hearing. We affirm.
1. Victim's recantation. A judge deciding a motion for a new trial is not required to accept a victim's recantation at face value and may consider factors pertinent to credibility, including "bias, self-interest, and delay." Commonwealth v. Buckman, 461 Mass. 24, 43 (2011). See Commonwealth v. Grant, 426 Mass. 667, 673 (1998).
Here, it was within the judge's discretion to find the victim's affidavit purporting to recant allegations made over thirty years ago not to be credible. See Commonwealth v. Robertson, 357 Mass. 559, 562 (1970); Commonwealth v. Santiago, 458 Mass. 405, 415 (2010). No explanation for the thirty-year delay was provided by the victim. The motivation for the recantation was also questionable given the defendant's familial relationship with the victim. See Commonwealth v. Velazquez, 61 Mass. App. Ct. 667, 676 (2004). Finally, the recantation was inconsistent with facts the defendant acknowledged to be true at his plea hearing. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 638-640 (2007). We cannot conclude that such a determination by the motion judge was an abuse of discretion.
The judge denied the defendant's motion "for substantially the reasons set forth in the Commonwealth's opposition." The Commonwealth's response to the defendant's motion argued that the victim's affidavit was not credible.
2. Intelligent and voluntary guilty plea. We also reject the defendant's claim that his plea was not entered intelligently and voluntarily. A defendant's challenge to a "long-closed conviction arrived at by plea . . . must be accompanied by sufficient credible and reliable evidence to rebut a presumption that the prior conviction was valid." Commonwealth v. Lopez, 426 Mass. 657, 664-665 (1998).
The defendant here has not met his burden. See Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 49-50 (1997) ("[T]he initial burden is on the moving defendant to present some articulable reason which the motion judge deems a credible indicator . . . above and beyond a movant's 'credulity straining' contentions"). The defendant relies on his own affidavit, which asserts that he was not informed of the standard consequences of pleading guilty. See Lopez, 426 Mass. at 665 (finding defendant's conclusory affidavit to be insufficient support for guilty plea challenge). Moreover, the defendant's affidavit was further discredited by the absence of an affidavit from trial counsel, who is still a practicing attorney. See Commonwealth v. Bowler, 60 Mass. App. Ct. 209, 213 (2003). See also Lopez, supra. We discern no abuse of discretion in denying the motion based on this self-serving affidavit.
3. Evidentiary hearing. A postconviction motion to withdraw a guilty plea and for a new trial is directed to the sound discretion of the motion judge, who is required to hold an evidentiary hearing only if the defendant raises a substantial issue. See Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004); Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 640 (2001). "Based on the total lack of credible or reliable evidence to support the defendant's claims, the judge did not abuse [her] discretion in denying the defendant's motions . . . without further inquiry." Lopez, 426 Mass. at 666.
4. Conclusion. For the reasons articulated above, we affirm the orders denying the defendant's postconviction motion to withdraw his guilty plea and for a new trial without an evidentiary hearing, and his motion for reconsideration.
So ordered.
By the Court (Cypher, Kafker & Green, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 6, 2015.