Opinion
10-P-1180
10-05-2011
COMMONWEALTH v. BRUCE TURNER.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Bruce Turner, appeals from a District Court judge's order denying his motion to withdraw his admission to sufficient facts entered on May 10, 1990. Moving to vacate his convictions for assault and battery by means of a dangerous weapon and malicious destruction of property over $250, the defendant alleges in essence that (1) his waiver of counsel, if made, was ineffective because it was not in writing; and (2) there was no evidence of a colloquy at the proceeding and therefore the defendant could not have intelligently, knowingly, or voluntarily waived his constitutional rights. We affirm.
In the order denying the defendant's motion, the motion judge mistakenly stated that the defendant's guilty pleas were given 'nearly twenty-seven years ago.' However, he also correctly stated that the date of the pleas was May 10, 1990. This was an inconsequential mathematical error. Both parties agree that the pleas were given in 1990, sixteen years prior to the hearing.
This was not raised below. See motion to withdraw admission to sufficient facts and its accompanying memorandum of law in the record appendix. On this ground alone, we could deny the appellant relief.
Motions to withdraw guilty pleas (or admissions to sufficient facts) are treated as motions for a new trial. Commonwealth v. Correa, 43 Mass. App. Ct. 714, 716 (1997), citing Commonwealth v. Huot, 380 Mass. 403, 406 (1980). Such motions are decided at the sound discretion of the motion judge, and are irreversible 'unless it is shown to be an abuse of discretion that produces a manifestly unjust result.' Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997), citing Commonwealth v. Little, 384 Mass. 262, 269 (1981).
Here, the defendant waited more than sixteen years between pleading guilty and filing his motion to withdraw the pleas. Due to this delay, the entire record could not be assembled. The defendant contends that the Commonwealth failed to meet its burden of demonstrating that the plea was voluntary and intelligent. See Commonwealth v. Quinones, 414 Mass. 423, 431-432 (1993).
By the time the motion was filed on June 19, 2006, the District Court no longer had the tape recordings of the defendant's plea colloquies. This is consistent with rule 211(A)(4) of the Special Rules of District and Municipal Courts, which only requires preservation of the original recording of a guilty plea for two and one-half years.
The Commonwealth, however, correctly indicates that a presumption of regularity attaches to convictions by guilty plea where a significant amount of time has passed and records of the proceeding are lost. 'Given the long delay in the defendant's attack on his guilty pleas, it is appropriate to accord the plea proceedings a presumption of regularity.' Commonwealth v. Gonzales, 43 Mass. App. Ct. 926, 926 (1997). In such circumstances, '[a] defendant's naked claim that he did not receive a constitutionally adequate guilty plea colloquy does not automatically thrust upon the Commonwealth the burden of proving the existence of a contemporaneous record establishing that the plea was entered knowingly and voluntarily. Rather, the initial burden is on the moving defendant to present some articulable reason which the motion judge deems a credible indicator that the presumptively proper guilty plea proceedings were constitutionally defective . . . .' Commonwealth v. Lopez, 426 Mass. 657, 662 (1998), quoting from Commonwealth v. Pingaro, 44 Mass. App. Ct. at 49-50.
Here, the presumption of validity applies and the defendant's claims regarding the lack of a written waiver of counsel and the deficiency of the colloquy both fail as a result. '[A] collateral challenge, like the defendant's, to a prior conviction by guilty plea . . . must be accompanied by sufficient credible and reliable evidence to rebut a presumption that the prior conviction was valid.' Lopez, supra at 664-665. In this case, no such credible evidence exists on the record.
The defendant had not presented evidence of the plea proceedings other than his self-serving affidavit. On May 17, 2011, the defendant moved to supplement the record with the affidavit of Kevin Cooper, his lawyer at the time the pleas were taken. The affidavit provides little evidence other than to confirm that the defendant was represented by counsel who was not present at the time of the pleas. Because Kevin Cooper was not at the proceedings, he is unable to provide any additional information about the validity of the defendant's waiver of counsel or the colloquy so as to overcome the presumption of regularity.
The trial judge acted within his discretion to deny the defendant's motion, finding that he failed to supply sufficient evidence to rebut the presumption of regularity. The judge also rightly found that, based on the defendant's extensive criminal record and his receiving a favorable disposition in exchange for the guilty pleas, the defendant was familiar with the court system, and any claim he acted 'by virtue of ignorance, coercion or intimidation' is unfounded.
Although the defendant did not account for the gap between his pleas and the filing of this motion, it strongly appears that his motivation is to avoid receiving a potentially longer sentence on a Federal case.
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For these reasons, as well as for substantially those in the brief of the Commonwealth, we affirm.
Order denying motion for new trial affirmed.
By the Court (Kantrowitz, Graham & Fecteau JJ.),