COMMONWEALTH v. HENRY H., a Juvenile.

• Court: Massachusetts Appeals Court
• Decided: July 2, 2026
• Docket: 25-P-0851
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-851

COMMONWEALTH

vs.

HENRY H., a juvenile.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2011 the juvenile pleaded delinquent to carrying a

firearm without a license and assault and battery by means of a

dangerous weapon. Thirteen years later the juvenile moved to

withdraw his plea, arguing that it was not knowing and voluntary

because the plea judge failed to advise him that the plea could

be used as a predicate offense under the subsequent offender

provisions of G. L. c. 269, § 10 (d) and the Massachusetts armed

career criminal act, G. L. c. 269, § 10G (ACCA). The juvenile

further argued that his plea counsel was ineffective for failing

to advise him of the same and that there was an insufficient

factual basis for the plea. A Juvenile Court judge (motion

judge), who was not the plea judge, denied the juvenile's motion without an evidentiary hearing and later denied his motion for

reconsideration. The juvenile appeals from both orders. We

affirm.

Background. In January 2011 the juvenile, then fifteen

years old, was charged in the Juvenile Court with carrying a

firearm without a license, possessing ammunition without a

firearm identification card, carrying a loaded firearm without a

license, discharging a firearm within five hundred feet of a

building, using a firearm during the commission of a felony,

armed assault with intent to murder, and assault and battery by

means of a dangerous weapon. As stated by the prosecutor at the

plea hearing, the charges stemmed from an incident in which

either the juvenile or his companion "fired three shots" from a

revolver that they "jointly possessed," hitting the victim one

time in the neck. In March 2011 the juvenile admitted to these

facts, pleaded delinquent to carrying a firearm without a

license and assault and battery by means of a dangerous weapon,

and was committed to the Department of Youth Services (DYS)

until his eighteenth birthday. In exchange the Commonwealth

dismissed the remaining charges.

At the time of the juvenile's plea, he had another open

case stemming from an incident in which he stabbed his brother

with a knife. The juvenile resolved that case in April 2011 by

pleading delinquent to assault and battery by means of a

2 dangerous weapon. A second charge of attempted murder was

dismissed.

In December 2019 a grand jury indicted the juvenile (who by

this time was twenty-four years old) for carrying a firearm

without a license, subsequent offense, and possession of

ammunition, among other charges.1 The subsequent offense portion

of the first indictment was based on the juvenile's plea in this

case. In addition, both indictments charged the juvenile with

two predicate offenses under the ACCA based on his plea in this

case and his April 2011 plea to assault and battery by means of

a dangerous weapon. These predicate offenses potentially

subjected the juvenile to enhanced punishment under the ACCA.

Discussion. A judge may allow a motion to withdraw a plea

only if "it appears that justice may not have been done."

Commonwealth v. Lopez, 426 Mass. 657, 662 (1998), quoting

Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992). In deciding

such a motion, the judge may proceed "based solely on

affidavits; may discredit untrustworthy affidavits; and need

only proceed to [an] evidentiary hearing 'where a substantial

issue is raised [by the motion or affidavits] and is supported

by a substantial evidentiary showing.'" Lopez, supra at 663,

1 The other charges included armed assault with intent to murder and assault and battery by means of a dangerous weapon causing serious bodily injury.

3 quoting Commonwealth v. Stewart, 383 Mass. 253, 260 (1981). On

appeal we review the judge's decision for a significant error of

law or other abuse of discretion. See Commonwealth v.

Lastowski, 478 Mass. 572, 575 (2018).

1. Knowing and voluntary plea. It is uncontested that the

plea judge did not warn the juvenile at the plea hearing that

his plea could subject him to enhanced punishment under G. L.

c. 269, § 10 (d), and the ACCA were he to commit a future crime.

The juvenile argues that the lack of such a warning violated his

due process rights, entitling him to a new trial. In the

alternative the juvenile argues that the motion judge abused her

discretion by not granting him an evidentiary hearing on his

claim.

These arguments are foreclosed by precedent. It is a

"well-settled principle that a judge's failure to inform a

defendant of a collateral consequence -- such as civil

confinement -- is, without more, insufficient to render a

defendant's guilty plea involuntary under the due process

clause." Commonwealth v. Roberts, 472 Mass. 355, 364 (2015).

See Commonwealth v. Santiago, 394 Mass. 25, 30 (1985) (lack of

warning about parole consequences did not invalidate pleas).

Thus, the absence of a warning here about the potential for

future sentencing enhancements -- a consequence that could only

be triggered were the juvenile to commit another crime -- did

4 not violate the juvenile's right to due process. See Roberts,

supra at 363 (due process does not require warning about

potential for civil confinement as sexually dangerous person

because civil confinement, "although tangentially connected to

the criminal process, is not a 'virtually mandatory' consequence

of a sexual offense conviction").

The juvenile's briefs on appeal do not address this well-

established precedent. To the extent the juvenile argues that

advancements in the science of juvenile brain development

warrant a departure from the precedent, we are unpersuaded. The

juvenile's reliance on cases such as Commonwealth v. Mattis, 493

Mass. 216 (2024), is misplaced. Those cases arose in the

context of sentencing and do not bear on the scope of a judge's

duty, as a matter of due process, to advise a juvenile of the

consequences of a plea. See id. at 234-235 (sentence of life

without parole for emerging adults violates prohibition against

cruel and unusual punishment); Commonwealth v. Price, 106 Mass.

App. Ct. 376, 380 (2025) ("circumstances around submitting a

plea of guilty" are different from considerations discussed in

Mattis).

The juvenile's reliance on Mass. R. Crim. P. 12 (c) (3) (B)

is also misplaced. Under the version of that rule in effect at

the time of the juvenile's plea, judges were required to inform

defendants "where appropriate, of the maximum possible sentence

5 on the charge, and . . . of any different or additional

punishment based upon subsequent offense . . . provisions of the

General Laws, if applicable." Mass. R. Crim. P. 12 (c) (3) (B),

as appearing in 442 Mass. 1514 (2004). The most natural reading

of this language is that it is referring to any subsequent

offender enhancements applicable to the charge to which the

defendant is pleading guilty. And in any event, while rule 12

"was intended to modify judicial practice by broadening the

scope of the duty to advise a criminal defendant of the

implications of a guilty plea," it does "not transform [a

collateral consequence] into a direct consequence of a

conviction for constitutional purposes." Roberts, 472 Mass. at

362. Thus, any failure by the plea judge to comply with rule 12

does not, by itself, invalidate the juvenile's plea.

Furthermore, the juvenile's claim fails for the independent

reason that he failed to demonstrate prejudice. To be entitled

to relief, the juvenile had to establish "a reasonable

probability that but for the judge's error he . . . would not

have pleaded [delinquent] and would have insisted on proceeding

to trial." Roberts, 472 Mass. at 365. The juvenile did not

meet this burden. As the motion judge found, the juvenile

received a favorable plea deal, resulting in only two and one-

half years in DYS custody and allowing him to avoid a youthful

offender indictment. The charges that the Commonwealth

6 dismissed in exchange included armed assault with intent to

murder, which carried severe potential penalties. Moreover, the

juvenile failed to identify a viable defense that he could have

raised had he gone to trial. See id. (factors to consider in

deciding motion to withdraw plea include whether defendant

"referenced weaknesses in the Commonwealth's case or a possible

defense" [quotation and citation omitted]). The juvenile's bare

assertion that this was a "triable case" is insufficient to meet

his burden, particularly where "through no fault of the

Commonwealth, the passage of time has destroyed or eroded the

record of the proceeding," the consequences of which must be

borne by "the defendant rather than the Commonwealth."

Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 637 (2001). See

Commonwealth v. DeMarco, 387 Mass. 481, 486 (1982) ("a judge

should only grant a postsentence motion to withdraw a plea if

the defendant comes forward with a credible reason which

outweighs the risk of prejudice to the Commonwealth" [footnote

omitted]).

In these circumstances the motion judge was well warranted

in discrediting the juvenile's assertion in his affidavit that

had he "known of the possible ACCA and subsequent offender

consequences, [he] would have pushed [his] attorney to take the

case to trial even if the [prosecutor] was threatening a

[youthful offender charge]." The juvenile failed to make a

7 credible showing that knowledge about the possibility of future

sentencing enhancements -- which again would only be triggered

if he committed new crimes -- would have made a difference in

his decision to plead guilty. See Lopez, 426 Mass. at 663

(requirement that defendant "provide sufficient credible and

reliable factual evidence" in support of motion to withdraw plea

"is particularly applicable when the challenge to a prior

conviction arises in the sentencing enhancement context"). The

juvenile's "dilatoriness" in moving to withdraw his plea further

"suggest[s] that, when the plea was made, [he] was satisfied

with his arrangement," id., and came to regret his choice only

when he faced collateral consequences in connection with the new

crimes he committed years later. For these reasons we discern

no error of law or abuse of discretion in the motion judge's

denial of the juvenile's claim without an evidentiary hearing.

2. Ineffective assistance of counsel. For similar reasons

we conclude that the motion judge did not err in denying the

juvenile's ineffective assistance claim without an evidentiary

hearing. "Generally, in Massachusetts, [counsel's] failure to

inform a defendant of the collateral or contingent consequences

of a plea does not render the plea involuntary." Commonwealth

v. Henry, 488 Mass. 484, 497 (2021). See Commonwealth v. Minon,

102 Mass. App. Ct. 244, 247 (2023) ("Advice as to collateral

consequences . . . has been considered outside the ambit of the

8 right to the effective assistance of counsel"). Thus, it is not

ineffective assistance for an attorney to neglect to advise a

"defendant of the collateral consequences of his plea agreement

with respect to possible future sentencing enhancements should

he be convicted of another crime." Henry, supra. Cf.

Commonwealth v. Sylvester, 476 Mass. 1, 8 (2016) (counsel not

ineffective for giving defendant incomplete advice about duty to

register as sex offender under then-current version of sex

offender registration law); Commonwealth v. Erler, 106 Mass.

App. Ct. 149, 154-155 (2025) (counsel not ineffective for

failing to inform defendant that conviction could cause him to

lose right to possess firearms). Henry forecloses the

juvenile's claim, even were we to accept that his plea counsel

did not advise him of the subsequent offender consequences of

his plea.2 Furthermore, as discussed above, the juvenile did not

make a credible showing that it would have been rational in the

circumstances for him to reject the plea deal and go to trial.

He has therefore failed to demonstrate that any deficient

performance of plea counsel prejudiced his defense. See

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

3. Factual basis of plea. Finally, the juvenile argues

that the evidence was insufficient to establish the following

2 The motion judge did not credit plea counsel's assertion that she neglected to advise the juvenile of those consequences.

9 elements of the offenses to which he pleaded delinquent:

operability of the firearm; his possession of the firearm and

participation in the assault and battery either as a principal

or joint venturer; and identification. In so arguing, the

juvenile asks us to apply the standard of review applicable to a

denial of a motion for a required finding of not guilty at

trial. But the factual basis for a plea need not satisfy that

standard; rather, the plea judge need determine "only whether

the evidence which [the judge] ha[s] heard, plus any information

[the judge] has obtained in the plea hearing, is sufficient,

when considered with reasonable inferences which may be drawn

therefrom, to support the charge to which the defendant is

offering a plea of guilty." Commonwealth v. Abreau, 102 Mass.

App. Ct. 51, 55 (2022), quoting Commonwealth v. Armstrong, 88

Mass. App. Ct. 756, 758 (2015).

Here, the information before the plea judge was sufficient

to support the charges. As mentioned, the prosecutor stated at

the plea hearing that the juvenile and his companion "jointly

possessed a .22 caliber revolver" and that either the juvenile

or his companion "fired three shots from the revolver, both of

them intending to shoot" the victim. These facts, which the

juvenile admitted to be true, established that the firearm was

operable, that the juvenile possessed it, and that he intended

10 to assault the victim. We therefore agree with the motion judge

that there was a sufficient factual basis for the plea.

Order denying motion to withdraw plea affirmed.

Order denying motion to reconsider affirmed.

By the Court (Blake, C.J., Shin & Wood, JJ.3),

Clerk

Entered: July 2, 2026.

3 The panelists are listed in order of seniority.