Opinion
No. 11–P–2098.
2013-02-4
COMMONWEALTH v. Ty SADDLER.
The defendant did not pursue an appeal from this ruling. 1 Rather, in 2011, the defendant filed a second motion to correct the docket (motion II), which is the subject of this appeal.
By the Court (BERRY, FECTEAU & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion to correct a criminal docket pursuant to Mass.R.Crim.P. 42, 378 Mass. 919 (1979). The defendant claims that his guilty plea, tendered in 1991, was incorrectly entered on the docket as a charge of “unlawful possession class B [substance] with intent to Distribute,” rather than simple possession. We affirm.
It was not until 2005, after receiving an enhanced Federal sentence for a subsequent drug offense, that the defendant challenged the 1991 docket entry for the first time. This first challenge came in the form of motions to “vacate guilty plea,” for a new trial, and to correct the criminal docket sheet. The motion judge denied the motions and stated as follows with regard to the motion to correct the docket (motion I):
“Upon review, denied. No hearing is required as no substantial issue is raised. The Clerk's notes are consistent with the docket entry. The prosecutor's file record is consistent with the docket entry. The sentence (5 years MCI Concord) is consistent with a plea of guilty of possession (Cl.B) with intent to distribute, and inconsistent with a plea of straight possession of class B.”
The defendant did not pursue an appeal from this ruling. Rather, in 2011, the defendant filed a second motion to correct the docket (motion II), which is the subject of this appeal.
The defendant filed an appeal pro se. He was subsequently appointed counsel, who did not pursue the appeal.
In support of motion II, the defendant produced his own affidavit, affidavits from his plea counsel in 1991, and two Federal criminal background reports. The judge who ruled on the defendant's motion I also ruled on motion II. The judge again declined to hold an evidentiary hearing and stated, “Denied. I have already dealt with this issue. The additional documents submitted by defendant do not alter my thinking.”
The affidavits from the defendant's plea counsel were the same affidavits that accompanied the defendant's original motions in 2005.
The two Federal background reports consist of a pretrial probation report and a National Criminal Information Center background report.
Central to the defendant's appellate argument is that the Federal background reports make reference only to the charge of simple possession of a class B substance, as opposed to possession with the intent to distribute. The defendant argues that this discrepancy, in combination with the affidavits of the defendant and his plea counsel, warranted an evidentiary hearing at a minimum. We are not so persuaded.
The judge properly relied on the notes of the clerk, along with the docket itself, in determining that the 1991 docket accurately reflected the defendant's guilty plea. “[T]he docket and minutes of the clerk are prima facie evidence of the facts recorded therein.” Commonwealth v. Mattos, 404 Mass. 672, 677 (1989), quoting from Barry v. Commonwealth, 390 Mass. 285, 289 (1983). The docket and clerk's notes may also “be supplemented, or even rebutted, by other evidence.” Commonwealth v. Mattos, supra. Here, the docket and the clerk's notes were supplemented by the prosecutor's records, the 1991 mittimus warrant, a 2011 criminal offender record information (CORI) report, and the five-year sentence imposed on the defendant—all of which were consistent with the defendant's guilty plea for possession of a class B substance with intent to distribute.
The defendant's affidavit, the affidavits from plea counsel, and the Federal criminal background reports do not suffice to counter the accuracy of the docket entries. Unlike the docket and the clerk's notes, the affidavits were composed long after the guilty plea had been entered. The averments in plea counsel's affidavits reference no supporting documentation and are apparently based solely on plea counsel's memory of a routine guilty plea entered more than fourteen years prior. The defendant's affidavit, executed over nineteen years after the guilty plea, is self-serving and is not to be afforded substantial weight. The Federal reports-which merely provide a cursory summary of criminal background information-do not cast doubt upon certified court records that were recorded contemporaneously with the defendant's guilty plea.
The defendant's challenge to the accuracy of his plea record is analogous to a motion to withdraw a guilty plea pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). “[T]he judge may decide a rule 30(b) motion based solely on affidavits; may discredit untrustworthy affidavits; and need only proceed to evidentiary hearing ‘where a substantial issue is raised [by the motion or affidavits] and is supported by a substantial evidentiary showing.’ “ Commonwealth v. Lopez, 426 Mass. 657, 663 (1998), quoting from Commonwealth v. Stewart, 383 Mass. 253, 260 (1981).
Compare Commonwealth v. Hoyle, 67 Mass.App.Ct. 10, 13 (2006) (“The defendant waited fifteen years to move to withdraw his pleas, an indicium of satisfaction with the plea agreement, and the defendant admits he moved to withdraw his pleas of guilty only because of the prospect of Federal sentencing enhancement”).
As with a late attack on a plea, “[t]he presumption of regularity and the policy of finality thus come into play ... to place on the defendant the requirement of showing some basis that adequately supports a negation of his conviction[ ] or which, at the very least, warrants further inquiry in the [trial] [c]ourt.” Commonwealth v. Grant, 426 Mass. 667, 671 (1998).
Order denying motion to correct docket affirmed.