Opinion
No. 12–P–486.
2013-05-22
COMMONWEALTH v. Alex R. TORRES.
Commonwealth v. Lopez, 426 Mass. 657, 661 (1998).
By the Court (GRASSO, KATZMANN & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a District Court judge's denial of his motion to withdraw his guilty plea. We affirm.
Background. On September 2, 1999, the defendant entered guilty pleas on two separate criminal complaints. On complaint 9933 CR 1566, the defendant pleaded guilty to possession with intent to distribute a class A drug, subsequent offense, and to possession of ammunition without an FID card. Additionally, on complaint 9933 CR 4918, the defendant pleaded guilty to possession of a class D drug. On November 24, 2010, the defendant filed a motion to withdraw guilty pleas entered in each of the complaints pursuant to Mass.R.Crim.P. § 30(b), as appearing in 435 Mass. 1501 (2001). The motion judge allowed the defendant's motion as to complaint 9933 CR 4918, but denied the motion as to complaint 9933 CR 1566. The judge did not make any factual findings or provide an explanation.
Discussion. On appeal, the defendant argues that since the court did not provide him with a Spanish interpreter during the plea colloquy, he did not enter a knowing and voluntary guilty plea. See G.L. c. 221C, §§ 2–3; Commonwealth v. Gautreaux, 458 Mass. 741, 753–754 (2011). With his motion to withdraw his guilty plea, the defendant, who was born and raised in Puerto Rico, submitted an affidavit in which he averred that at the time of his plea, English was his second language and he had difficulty understanding “many words and phrases.” The defendant also stated that he was not assisted by an interpreter, that he did not understand the plea proceedings, and that he did not understand the consequences of the plea. Accordingly, the defendant contends that the motion judge committed error when the defendant was not allowed to withdraw his guilty plea.
We review the denial of a motion to withdraw a guilty plea and for a new trial for abuse of discretion. See Commonwealth v. Lucien, 440 Mass. 658, 669 (2004). A defendant bears the burden of proof on a motion for a new trial. See Commonwealth v. Watson, 455 Mass. 246, 256 (2009). “[A] judge is entitled to discredit affidavits he or she does not find credible.” Commonwealth v. Marinho, 464 Mass. 115, 123 (2013), citing Commonwealth v. Grace, 370 Mass. 746, 751–752 (1976).
Since the defendant brought his motion for a new trial more than eleven years after entering his guilty plea, “the burden is on the defendant to ‘present evidence sufficient to rebut a presumption that the plea proceeding was conducted correctly.’ “ Commonwealth v. Gautreaux, 458 Mass. at 754, quoting from Commonwealth v. Grannum, 457 Mass. 128, 133 (2010). The Supreme Judicial Court has explained the policy considerations that animate its decision to place the burden of proof squarely on the defendant:
“[W]hen the defendant leaves his guilty pleas unchallenged for a lengthy period of time, so that the contemporaneous record of the plea is lost (by proper destruction of the stenographer's notes or erasure of the tape recording pursuant to court rules), and means of reconstruction are made impractical or impossible due to the death or retirement of judges and court reporters, the unavailability of witnesses, the inherent weaknesses and failures of recollection, and other factors commonly associated with the passage of time ... the absence of a record, and the inability effectively to reconstruct it, may be directly attributed to the defendant's delay and may be said to be the defendant's fault.”
Commonwealth v. Lopez, 426 Mass. 657, 661 (1998).
The limited record before the motion judge included: the docket sheets associated with the two complaints, a tender of plea form, and an unsigned waiver of defendant's rights form associated with complaint 9933 CR 1566.
The tender of plea form indicates that a plea colloquy took place and the form bears the motion judge's signature.
In this case, pursuant to court rules, the clerk's office likely destroyed the original tape recording of the plea proceedings. See District Court Special Rule 211 A(4) (1988) (tape recordings of guilty plea proceedings must be kept for at least two and one-half years).
In support of his motion for a new trial, the defendant only supplemented the record by including an affidavit. However, “a judge is not required to accept the defendant's self-serving affidavit, alleging constitutional defects in conclusory terms, as sufficient to satisfy the defendant's burden....” Ibid. Additionally, “[a]lthough supporting affidavits from the attorneys who represented the defendant at the plea proceedings could have strengthened his allegations, no such affidavits were filed with the motion ....“ Id. at 665.
On appeal, the Commonwealth submitted a motion to expand the record and include affidavits by the motion judge, who recorded the defendant's guilty plea, as well as an affidavit by the assistant district attorney who prosecuted the case. The defendant opposed the Commonwealth's submission of these affidavits as inconsistent with Mass.R.A.P. 8(e), as amended, 378 Mass. 932 (1979). Because we are able to reach a decision without considering these affidavits, we need not rule on the government's motion to supplement the record.
Given the limited record before the motion judge, resulting from the defendant's delay in pursuing this appeal as well as the defendant's subsequent failure to supplement the record, the motion judge properly denied the defendant's motion for a new trial. See ibid. In sum, the defendant failed to “present evidence sufficient to rebut a presumption that the plea proceeding was conducted correctly.” Commonwealth v. Gautreaux, 458 Mass. at 754, quoting from Commonwealth v. Grannum, 457 Mass. at 133.
Order denying motion for new affirmed.