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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Grant, 440
On December 31, 2001, the defendant filed a
motion for a new trial, pursuant to Mass. R. Crim. P.
30 (b), as appearing in 435 Mass. 1501 (2001), in the New Bedford Division
of the District Court Department, seeking to withdraw certain admissions to
sufficient facts that he had entered into in 1992. A District Court judge
denied the motion without a hearing. The defendant filed a motion for
reconsideration, which the judge also denied. The defendant appealed, and we
transferred the case to this court on our own motion. We now vacate the judge's
order denying the motion for a new trial and remand the matter for appointment
of counsel and further development of the record.
Facts. This is the defendant's second attempt at
obtaining the relief requested. As set forth in Commonwealth v. Grant, 426
Mass. 667, 668 (1998), in 1992, the defendant admitted to sufficient facts to
warrant findings of guilty on certain charges, and a judge in the District Court
(plea judge) sentenced him to three concurrent terms of eighteen months in a
house of correction. In 1995, the defendant pleaded guilty to certain
additional charges in violation of Federal law, and a United States District
Court judge for the District of Massachusetts sentenced him to an enhanced
sentence of imprisonment as a result of the predicate State convictions.
The defendant argues that this court's decision in Matter of Markey, supra,
serves as "credible and reliable" evidence that the plea judge
routinely failed to provide adequate plea colloquies, thus overcoming the
"presumption of regularity" in his case and requiring an evidentiary
hearing at which the Commonwealth would bear the burden of proof.
Discussion. As recently stated in Commonwealth v. Colon, 439 Mass. 519, 524
(2003), the denial of a motion for a new trial is reviewed for abuse of
discretion and will not be reversed unless it is manifestly unjust or infected
with prejudicial constitutional error. In this case, the defendant claims an
injustice because, in his first appeal, this court accorded a measure of
deference to the fact that the plea judge may have relied, in serving as both
the plea judge and the motion judge on the defendant's first motion, "on
his usual practice of assuring that defendants in this sort of case are
apprised of the rights they give up by tendering guilty pleas or the
equivalent" (emphasis added). Commonwealth v. Grant,
supra at 672. This statement seems, at first blush, to be contradicted
by our subsequent recognition that the plea judge had engaged in a
"pattern of conduct with regard to plea colloquies, whereby he exhibited a
wilful disregard of the law." Matter
of Markey, supra at 807. However, the defendant has not reconstructed
the record beyond calling our attention to the decision in Matter of Markey,
supra.[2] We have reviewed preliminarily
the record that was before us in Matter of Markey, supra, including the
transcript of the evidentiary hearing before the hearing officer whom we
appointed in connection with the charges filed against the plea judge by the
Commission on Judicial Conduct. We conclude that the defendant's submission may
raise a "colorable or meritorious issue," that the better course
would have been to assign counsel to pursue the issue on the defendant's
behalf, and that it would result in "fundamental unfairness" in the
circumstances of this case if he does not receive the benefit of counsel to
develop further the record in support of his motion for a new trial.
Conclusion. The orders denying the defendant's second
motion under Mass. R. Crim. P. 30 (b) and declining
to appoint counsel are hereby vacated. The case is remanded to the District
Court for the appointment of counsel, who may press the defendant's claim by
filing an amended motion for a new trial that is accompanied by appropriate
supporting documentation.[3] We express
no opinion at this juncture whether the defendant has negated the presumption
of regularity, or whether he will be entitled to an evidentiary hearing. Those
are questions for the motion judge to determine in the first instance on
remand, in view of the defendant's amended submission.
So ordered.
The case was submitted on briefs.
Jonathan Grant, II, pro se.
Steven E. Gagne, Assistant District Attorney, for the Commonwealth.
FOOTNOTES:
[1] The motion judge stated, in denying the
defendant's motion for a new trial, that she had referred the matter to an
attorney "for screening to determine whether counsel should be appointed
to prepare and handle a [r]ule 30 motion and
represent the defendant," and that "[t]he screening determination,
with which I concur, is that there is no meritorious issue raised by the
defendant."
[2] The defendant, who claims that he does not have
access to
[3] The limited record
before us does not indicate that a determination was made whether the defendant
is in fact indigent. This prerequisite must of course be satisfied in
accordance with S.J.C. Rule
G. L. c. 211D, before counsel is appointed.