Opinion
16-P-920
05-24-2017
COMMONWEALTH v. Daniel TRUE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2014, the defendant pleaded guilty to operating under the influence of intoxicating liquor, third offense. In 2015, the defendant moved to withdraw his guilty plea, which was denied. On appeal, he claims that the judge abused her discretion by denying his motion without a hearing and without issuing any findings of fact or rulings of law. We affirm.
To support his motion, the defendant submitted his own affidavit, as well as one from his girl friend, Joyce Shirton, in support of his contention that he was not properly advised by his attorney as to the judge's discretion in sentencing after a guilty plea. He claims that these affidavits raised a substantial issue, and therefore a hearing should have been held or at least findings of facts and rulings of law should have been issued. We disagree.
"A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass.R.Crim.P. 30 (b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v. Furr, 454 Mass. 101, 106 (2009). The evaluation of a postconviction motion to withdraw a guilty plea is left to the sound discretion of the motion judge, and we review only for an abuse of discretion or other error of law. See Commonwealth v. Ciampa, 51 Mass. App. Ct. 459, 461 (2001) ; Mass.R.Crim.P. 30(b). "A strong policy of finality limits the grant of new trial motions to exceptional situations, and such motions should not be allowed lightly." Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012).
"Whether an evidentiary hearing should be held on such a motion depends not just on the defendant's presenting a serious or substantial issue, but also on his making a credible and adequate showing thereon." Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 551 (2002). See Commonwealth v. Stewart, 383 Mass. 253, 259 (1981). The defendant's contention that his affidavit, and the affidavit of his girl friend, both raise a substantial issue about his knowledge of the sentencing practices after pleading guilty are without merit, as the affidavits are self-serving and unsubstantiated by any other showing of trial counsel's failure or ineffective assistance. See Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 639-640 (2001). "The credibility, weight, and impact of the affidavits in support of the motion are entirely within the judge's discretion. [Sh]e is not required to believe them even if they are undisputed." Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997). The lack of an affidavit from trial counsel also casts a negative inference on the defendant's submission. See Commonwealth v. Fanelli, 412 Mass. 497, 501 n.3 (1992).
Contrary to the defendant's claim, during his plea colloquy, the judge asked him whether he was "satisfied with [his] attorney's advice" to which he responded, "I am." He later acknowledged that the facts read aloud were true and that he was guilty. Finally, at the end of the hearing, the defendant listened to the sentencing recommendation of the Commonwealth, to which his counsel did not object, and still stated he wished to plead guilty.
The defendant's reliance on Massachusetts Rules of Civil Procedure in his argument that the judge was required to issue findings of fact and rulings of law in his criminal case is not persuasive. A denial of a motion for new trial "implies resolution of factual issues in favor of the Commonwealth." Commonwealth v. Grandison, 433 Mass. 135, 137 (2001) (quotation omitted). The judge did not commit an error of law or abuse her discretion in denying the defendant's motion for new trial.
Order denying motion for new trial affirmed.