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
23-P-281
COMMONWEALTH
vs.
LARS E. PRESCOTT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order of a District Court
judge denying his motion for a new trial that sought to vacate a
guilty plea entered in 1986. We affirm.
Background. On November 8, 1985, a complaint charged the
defendant with larceny of property over $100 and malicious
destruction of property over $100. Three months later, on
February 25, 1986, the defendant admitted to sufficient facts to
warrant a finding of guilty, and the judge sentenced him to one
year of probation, imposed a fine, and ordered restitution. The
defendant was ultimately discharged from probation.
In 2021, the defendant filed a motion for a new trial along
with his own affidavit detailing the events surrounding his convictions. He claimed that (1) his lawyer had a conflict of
interest by simultaneously representing the defendant and two
codefendants, (2) his lawyer and the judge erred by failing to
inform him that a conviction would prevent him from obtaining a
license to carry a firearm, and (3) the judge should have
informed him that an admission to sufficient facts would result
in a conviction.
At a hearing on the motion, the defendant testified before
a second judge who was not the plea judge, and he presented no
additional evidence. According to his testimony, the defendant,
who was nineteen or twenty years old in 1985, was satisfied with
the disposition of the case and did not appeal at that time. He
understood that he was pleading guilty, but the conviction would
be "off [his] record" following probation. His lawyer never
explained that the proceedings would result in a felony
conviction and never explained that he would be forfeiting
rights under the Second Amendment. He also did not recall the
judge ever explaining the forfeiture of Second Amendment rights.
Around 2014, the Northborough Police Department issued the
defendant a license to carry a firearm. Six years later, the
police chief denied a renewal of that license and confiscated
his firearms due to his convictions. In its opposition, the
Commonwealth argued that the defendant failed to produce
2 evidence that overcame the presumption of a valid plea, and that
the judge should not credit the defendant's "self-serving"
assertions. The judge denied the motion in an endorsement order
and "concur[red] with the Commonwealth's position."
On appeal, the defendant repeats his conflict of interest
claim as well as his claim that counsel and the plea judge
failed to advise him that a conviction would preclude him from
obtaining a license to carry a firearm. He adds a new claim
that the plea judge failed to give him the opportunity to
withdraw a defendant-capped plea.
Discussion. "A postsentence motion to withdraw a plea is
treated as a motion for a new trial." Commonwealth v. Conaghan,
433 Mass. 105, 106 (2000). "Pursuant to Mass. R. Crim. P. 30
(b), as appearing in 435 Mass. 1501 (2001), a judge 'may grant a
new trial at any time if it appears that justice may not have
been done.'" Commonwealth v. Ferreira, 481 Mass. 641, 648
(2019). "We review the denial of a motion for a new trial 'only
to determine whether there has been a significant error of law
or other abuse of discretion.'" Commonwealth v. Bonnett, 482
Mass. 838, 843-844 (2019), quoting Commonwealth v. Grace, 397
Mass. 303, 307 (1986). See L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014).
3 1. Conflict of interest. "An element of the fundamental
right to counsel under art. 12 of the Massachusetts Declaration
of Rights is the defendant's right to the full and undivided
loyalty of his attorney." Commonwealth v. Shraiar, 397 Mass.
16, 20 (1986). "A defendant is entitled to the untrammeled and
unimpaired assistance of counsel free from any conflict of
interest." Id. The defendant bears the burden of presenting
"demonstrative proof detailing both the existence and the
precise character of this alleged conflict of interest; we will
not infer a conflict based on mere conjecture or speculation."
Shraiar, supra.
We discern no error in the judge's rejection of this claim
because the record shows the defendant did not meet his burden
of showing an actual conflict of interest. See Commonwealth v.
Stote, 456 Mass. 213, 218 (2010). In support of his motion, the
defendant testified, without elaboration, that one lawyer
represented all the co-defendants during the plea hearing. Even
if the judge credited this testimony, the defendant did not meet
his burden. Courts do not "automatically infer a conflict of
interest from dual or joint representation alone." Commonwealth
v. Balliro, 437 Mass. 163, 168 (2002). In the absence of "a
conflict of interest which interferes with the proper
presentation of the defense of one of the codefendants, the mere
4 fact that both are represented by the same attorney is not
grounds for [relief]." Commonwealth v. LaFleur, 1 Mass. App.
Ct. 327, 331 (1973), quoting Lugo v. United States, 350 F.2d
858, 859 (9th Cir. 1965).
In his brief, the defendant faults the Commonwealth for
failing to offer evidence "contradicting" his claim of a
conflict of interest. The burden of proof on the motion,
however, rested with the defendant and not the Commonwealth.
Stote, 456 Mass. at 218. We also note that the defendant did
not produce affidavits from the codefendants or the lawyer, a
transcript of the plea hearing, docket entries from the
codefendants' cases, or a police report. See Commonwealth v.
Lopez, 426 Mass. 657, 665-666 (1998). A motion for a new trial
cannot be "grounded on mere speculation." Commonwealth v.
Laguer, 410 Mass. 89, 94 (1991).
2. Advisory regarding license to carry. The defendant next
contends that his motion should have been allowed because
counsel rendered ineffective assistance and the plea judge erred
by failing to explain the consequences a conviction would have
on a license to carry a firearm. "Where a motion for a new
trial is based on ineffective assistance of counsel, the
defendant must show that the behavior of counsel fell 'below
that . . . [of] an ordinary fallible lawyer' and that such
5 failing 'likely deprived the defendant of an otherwise
available, substantial ground of defence.'" Commonwealth v.
Miller, 101 Mass. App. Ct. 344, 348 (2022), quoting Commonwealth
v. Saferian, 366 Mass. 89, 96 (1974).
Free access — add to your briefcase to read the full text and ask questions with AI
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
23-P-281
COMMONWEALTH
vs.
LARS E. PRESCOTT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order of a District Court
judge denying his motion for a new trial that sought to vacate a
guilty plea entered in 1986. We affirm.
Background. On November 8, 1985, a complaint charged the
defendant with larceny of property over $100 and malicious
destruction of property over $100. Three months later, on
February 25, 1986, the defendant admitted to sufficient facts to
warrant a finding of guilty, and the judge sentenced him to one
year of probation, imposed a fine, and ordered restitution. The
defendant was ultimately discharged from probation.
In 2021, the defendant filed a motion for a new trial along
with his own affidavit detailing the events surrounding his convictions. He claimed that (1) his lawyer had a conflict of
interest by simultaneously representing the defendant and two
codefendants, (2) his lawyer and the judge erred by failing to
inform him that a conviction would prevent him from obtaining a
license to carry a firearm, and (3) the judge should have
informed him that an admission to sufficient facts would result
in a conviction.
At a hearing on the motion, the defendant testified before
a second judge who was not the plea judge, and he presented no
additional evidence. According to his testimony, the defendant,
who was nineteen or twenty years old in 1985, was satisfied with
the disposition of the case and did not appeal at that time. He
understood that he was pleading guilty, but the conviction would
be "off [his] record" following probation. His lawyer never
explained that the proceedings would result in a felony
conviction and never explained that he would be forfeiting
rights under the Second Amendment. He also did not recall the
judge ever explaining the forfeiture of Second Amendment rights.
Around 2014, the Northborough Police Department issued the
defendant a license to carry a firearm. Six years later, the
police chief denied a renewal of that license and confiscated
his firearms due to his convictions. In its opposition, the
Commonwealth argued that the defendant failed to produce
2 evidence that overcame the presumption of a valid plea, and that
the judge should not credit the defendant's "self-serving"
assertions. The judge denied the motion in an endorsement order
and "concur[red] with the Commonwealth's position."
On appeal, the defendant repeats his conflict of interest
claim as well as his claim that counsel and the plea judge
failed to advise him that a conviction would preclude him from
obtaining a license to carry a firearm. He adds a new claim
that the plea judge failed to give him the opportunity to
withdraw a defendant-capped plea.
Discussion. "A postsentence motion to withdraw a plea is
treated as a motion for a new trial." Commonwealth v. Conaghan,
433 Mass. 105, 106 (2000). "Pursuant to Mass. R. Crim. P. 30
(b), as appearing in 435 Mass. 1501 (2001), a judge 'may grant a
new trial at any time if it appears that justice may not have
been done.'" Commonwealth v. Ferreira, 481 Mass. 641, 648
(2019). "We review the denial of a motion for a new trial 'only
to determine whether there has been a significant error of law
or other abuse of discretion.'" Commonwealth v. Bonnett, 482
Mass. 838, 843-844 (2019), quoting Commonwealth v. Grace, 397
Mass. 303, 307 (1986). See L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014).
3 1. Conflict of interest. "An element of the fundamental
right to counsel under art. 12 of the Massachusetts Declaration
of Rights is the defendant's right to the full and undivided
loyalty of his attorney." Commonwealth v. Shraiar, 397 Mass.
16, 20 (1986). "A defendant is entitled to the untrammeled and
unimpaired assistance of counsel free from any conflict of
interest." Id. The defendant bears the burden of presenting
"demonstrative proof detailing both the existence and the
precise character of this alleged conflict of interest; we will
not infer a conflict based on mere conjecture or speculation."
Shraiar, supra.
We discern no error in the judge's rejection of this claim
because the record shows the defendant did not meet his burden
of showing an actual conflict of interest. See Commonwealth v.
Stote, 456 Mass. 213, 218 (2010). In support of his motion, the
defendant testified, without elaboration, that one lawyer
represented all the co-defendants during the plea hearing. Even
if the judge credited this testimony, the defendant did not meet
his burden. Courts do not "automatically infer a conflict of
interest from dual or joint representation alone." Commonwealth
v. Balliro, 437 Mass. 163, 168 (2002). In the absence of "a
conflict of interest which interferes with the proper
presentation of the defense of one of the codefendants, the mere
4 fact that both are represented by the same attorney is not
grounds for [relief]." Commonwealth v. LaFleur, 1 Mass. App.
Ct. 327, 331 (1973), quoting Lugo v. United States, 350 F.2d
858, 859 (9th Cir. 1965).
In his brief, the defendant faults the Commonwealth for
failing to offer evidence "contradicting" his claim of a
conflict of interest. The burden of proof on the motion,
however, rested with the defendant and not the Commonwealth.
Stote, 456 Mass. at 218. We also note that the defendant did
not produce affidavits from the codefendants or the lawyer, a
transcript of the plea hearing, docket entries from the
codefendants' cases, or a police report. See Commonwealth v.
Lopez, 426 Mass. 657, 665-666 (1998). A motion for a new trial
cannot be "grounded on mere speculation." Commonwealth v.
Laguer, 410 Mass. 89, 94 (1991).
2. Advisory regarding license to carry. The defendant next
contends that his motion should have been allowed because
counsel rendered ineffective assistance and the plea judge erred
by failing to explain the consequences a conviction would have
on a license to carry a firearm. "Where a motion for a new
trial is based on ineffective assistance of counsel, the
defendant must show that the behavior of counsel fell 'below
that . . . [of] an ordinary fallible lawyer' and that such
5 failing 'likely deprived the defendant of an otherwise
available, substantial ground of defence.'" Commonwealth v.
Miller, 101 Mass. App. Ct. 344, 348 (2022), quoting Commonwealth
v. Saferian, 366 Mass. 89, 96 (1974). A plea judge must be
satisfied that the defendant understands the direct consequences
of the plea, including "waiving the privilege against self-
incrimination, waiving the right to trial by jury, and waiving
the right to confront one's accusers." Commonwealth v. Minon,
102 Mass. App. Ct. 244, 247 (2023). Because the consequences
pertaining to the license to carry were collateral to the plea,
the motion judge properly rejected this claim as well.
A guilty plea is not necessarily vulnerable "because a
defendant has received inaccurate or incomplete advice from his
counsel concerning the penal consequences of the plea."
Commonwealth v. Indelicato, 40 Mass. App. Ct. 944, 945 (1996).
As in the Indelicato case where the plea had adverse
consequences on a license to carry a firearm, the alleged lapse
by counsel here involved a matter "entirely collateral to the
charges pending for the plea." Id. Advice concerning such
collateral consequences "has been considered outside the ambit
of the right to the effective assistance of counsel." Minon,
102 Mass. App. Ct. at 247. We disagree with the defendant's
contention that the constitutional right to bear arms as
6 articulated in recent cases requires a different result. See,
e.g., New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597
U.S. 1, 10 (2022); McDonald v. Chicago, 561 U.S. 742, 791
(2010). Criminal convictions can impair many rights -- even
rights with a constitutional dimension. Indeed, "criminal
convictions can carry a wide variety of consequences other than
conviction and sentencing, including civil commitment, civil
forfeiture, the loss of the right to vote, disqualification from
public benefits, ineligibility to possess firearms, dishonorable
discharge from the Armed Forces, and loss of business or
professional licenses." Minon, 102 Mass. App. Ct. at 248,
quoting Padilla v. Kentucky, 559 U.S. 356, 376 (2010) (Alito,
J., concurring). Counsel was "not required to be omniscient,"
and if he failed to fully advise the defendant of the collateral
consequences of the plea, such a failing was not a "grave and
fundamental" error that fell below the standard of an ordinary
fallible lawyer. Indelicato, supra, quoting Commonwealth v.
Norman, 27 Mass. App. Ct. 82, 86 (1989).
Similarly, before accepting the plea in 1986, the judge had
no obligation to probe the defendant's understanding of his
constitutional right to bear arms. "The rule that a plea must
be intelligently made to be valid does not require that a plea
be vulnerable to later attack if the defendant did not correctly
7 assess every relevant factor entering into his decision." Brady
v. United States, 397 U.S. 742, 757 (1970). Also, the decision
to plead guilty often includes "imponderable questions for which
there are no certain answers; judgments may be made that in the
light of later events seem improvident, although they were
perfectly sensible at the time." Id. at 756-757. Such is the
case here. In 1986, the defendant made a perfectly sensible
decision to bring his criminal case to an end, and he now
regrets the decision based upon collateral consequences that
only recently came to light. These circumstances do not evince
an error by the plea judge but instead demonstrate a legislative
judgment as to who should have a license to carry a firearm.
3. Opportunity to withdraw plea. Finally, for the first
time, the defendant claims that he was not given the opportunity
to withdraw his defendant-capped plea during the plea hearing.
This argument fails because he did not raise it below. "If a
defendant fails to raise a claim that is generally known and
available at the time of trial or direct appeal or in the first
motion for postconviction relief, the claim is waived." Rodwell
v. Commonwealth, 432 Mass. 1016, 1018 (2000), citing
Commonwealth v. Ambers, 397 Mass. 705, 707 n.2 (1986). Even if
not waived, the claim lacks any support in the record. When a
plea remains unchallenged for a lengthy period of time leaving
8 no contemporaneous record, the defendant must "provide
sufficient credible and reliable factual evidence" in support of
the motion. Lopez, 426 Mass. at 663. He has not done so, and
we decline to speculate as to what might have happened during
the plea hearing.
Order denying motion for a new trial affirmed.
By the Court (Meade, Englander & Hodgens, JJ.1),
Clerk
Entered: September 11, 2024.
1 The panelists are listed in order of seniority.