Opinion
15-P-545
03-16-2016
COMMONWEALTH v. MANUEL RUIZ.
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
The defendant, acting pro se, appeals from the March, 2015, denial of his motion for a new trial. We affirm.
The defendant's brief refers to the denial of his motion for reconsideration. This motion was filed and denied after the defendant had filed his notice of appeal and was not included in that notice. It is not before us.
Background. This is the defendant's second collateral attack on his guilty pleas. See Commonwealth v. Ruiz, 87 Mass. App. Ct. 1105 (2015) (affirming the denial without hearing of motions to withdraw guilty pleas and for a new trial). In March, 2015, the defendant filed a second motion for a new trial supported by what he claims are copies of his passport showing that he was out of the country at the time of the crimes. After reviewing the defendant's submission, the plea judge denied the motion without hearing.
Discussion. Our review of the denial of a motion to withdraw a guilty plea is for an abuse of discretion. Commonwealth v. Williams, 71 Mass. App. Ct. 348, 353 (2008). Our ability to review the defendant's claims is limited by the absence from the record of the motion for a new trial. While documents purporting to be copies of a passport are included, they are not accompanied by an affidavit from the defendant stating that they are in fact his. For that reason alone the judge could deny the motion. See Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001). The defendant states in his brief that, at the plea colloquy, he "attempted to . . . furnish[] the court with facts that he was not in the country at the [relevant] times," but he does not explain why he could not have introduced that evidence at the trial that was poised to begin. The defendant was required to submit "sufficient credible and reliable evidence to rebut a presumption that the prior conviction [by guilty plea] was valid[,]" and, on this record, "the judge did not abuse his discretion in denying the defendant's motions . . . without further inquiry." Commonwealth v. Lopez, 426 Mass. 657, 665-666 (1998).
The defendant entered pleas of guilty on the second day of trial.
Order denying motion for new trial affirmed.
By the Court (Vuono, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 16, 2016.