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-597
COMMONWEALTH
vs.
NAZARETH PERKINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant, Nazareth Perkins,
was convicted of armed and masked robbery, in violation of G. L.
c. 265, § 17. The Commonwealth filed a nolle prosequi on the
habitual offender portion of the indictment and jointly
recommended a sentence of fifteen to twenty years in State
prison, which the trial judge imposed. A panel of this court
affirmed the defendant's conviction on direct appeal. See
Commonwealth v. Perkins, 98 Mass. App. Ct. 1120 (2020). The
defendant subsequently filed a motion for a new trial, and
later, a renewed motion for a new trial, or, in the alternative,
a new sentencing hearing, both of which the motion judge denied in a single order.1 On appeal, the defendant argues that the
motion judge abused his discretion by denying his motions for a
new trial, including by doing so without holding an evidentiary
hearing. We affirm.
Background. On January 19, 2017, at approximately 8 P.M.,
the defendant and two other men approached the New Family Market
in Dorchester from an alleyway near Humboldt Avenue and Crawford
Street. The defendant wore a mask, maroon hooded sweatshirt,
and black pants; a second man, Richard Greene, was unmasked and
wore a knit cap; and the third man, who was never identified,
wore a mask, green camouflage jacket, and hood. The defendant
was taller than the other two men. Shortly after the three men
entered the market, Greene and the unidentified man pointed
firearms at the market workers, telling them not to move.
During the robbery, the defendant pointed to a cash
register, at which time a distinctive tattoo of an "Adidas"
symbol, located on his right hand, became visible on the
market's surveillance video recording. The robbers took money
from cash registers, money from one of the market workers, and a
box of cigarettes. The three men departed the market through a
rear doorway that was not typically used by customers, where a
1 The defendant filed an initial motion for a new trial in December 2023, and he filed the renewed motion in May 2024. 2 car was waiting for them outside. The robbers entered the car,
and it drove away.
Through subsequent investigation into the armed robbery,
the Boston police department (BPD) determined that the defendant
had a tattoo on his right hand that resembled the tattoo
depicted on the surveillance video recording. In addition, a
BPD database search revealed that out of approximately 1.5
million tattoo images, five people in the database had some form
of an Adidas tattoo on their right hand. Among these people,
only one had a height and build similar to the defendant.
The police also learned through cell phone records that the
defendant and Greene had twenty-six communications on their cell
phones between 3:56 P.M. and 8:51 P.M. on the date of the
robbery. Many of the communications occurred just prior to the
robbery but ceased at 7:21 P.M. There was no such communication
between 8 P.M. and 8:11 P.M., which was the time when the
robbery and getaway occurred. Furthermore, the defendant had
resided immediately across the street from the market.
Discussion. We review the denial of the defendant's motion
for a new trial for an abuse of discretion. See Commonwealth v.
DeJesus, 71 Mass. App. Ct. 799, 811 (2008). Under Mass.
R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), a
judge may grant a new trial only "if it appears that justice may
3 not have been done" (citation omitted). Commonwealth v.
Fanelli, 412 Mass. 497, 504 (1992). "'[A] motion for new trial
may not be used as a vehicle to compel . . . review and
[consideration of] questions of law,' on which a defendant has
had his day in an appellate court, or [on which he has] forgone
that opportunity" (citation omitted) Commonwealth v. Watson,
409 Mass. 110, 112 (1991). "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).
Here, except for the ineffective assistance of counsel
claim, all of the claims raised by the defendant in both his
initial and renewed motions for new trial were knowable and
available at the time of the trial or on direct appeal, they are
waived. See Rodwell, 432 Mass. at 1018. However, "waived
claims, no less than preserved claims, are reviewed on appeal."
Commonwealth v. Santos, 95 Mass. App. Ct. 791, 795 (2019).
However, we review waived claims only to determine if error
occurred, and if so, whether it created a substantial risk of a
miscarriage of justice. See Commonwealth v. Randolph, 438 Mass.
290, 293-295 (2002). "Errors of this magnitude are
extraordinary events and relief is seldom granted." Id. at 297.
4 1. Tattoo expert. The defendant argues that his trial
counsel was ineffective for failing to call a tattoo expert at
trial to conduct a comparison between the defendant's tattoo and
the tattoo depicted on the surveillance video footage.2 We are
not persuaded.
"To prevail on a claim of ineffective assistance of
counsel, the defendant ultimately must show that (1) counsel's
performance fell measurably below that of an ordinary fallible
lawyer, and (2) the defendant suffered prejudice as a result."
Commonwealth v. Santana, 497 Mass. 120, 131 n.13 (2026). If a
claim of ineffective assistance "is based on a tactical or
strategic decision, however, we apply the more rigorous standard
providing that, to be ineffective, the attorney's decision must
have been manifestly unreasonable." Commonwealth v. Henderson,
486 Mass. 296, 302 (2020).
"The decision to call, or not to call, an expert witness
fits squarely within the realm of strategic or tactical
decisions." Henderson, 486 Mass. at 306, quoting Commonwealth
v. Ayala, 481 Mass. 46, 63 (2018). "Where a party in a criminal
trial seeks to offer an expert opinion, the judge, as
2 The defendant did not provide us any images of his tattoo or of the perpetrator's tattoo in either this appeal or his prior appeal.
5 gatekeeper, must first determine whether the proponent of the
evidence has met the five foundational requirements for
admissibility," the first being "that the expert testimony will
assist the trier of fact because the information is beyond the
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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-597
COMMONWEALTH
vs.
NAZARETH PERKINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant, Nazareth Perkins,
was convicted of armed and masked robbery, in violation of G. L.
c. 265, § 17. The Commonwealth filed a nolle prosequi on the
habitual offender portion of the indictment and jointly
recommended a sentence of fifteen to twenty years in State
prison, which the trial judge imposed. A panel of this court
affirmed the defendant's conviction on direct appeal. See
Commonwealth v. Perkins, 98 Mass. App. Ct. 1120 (2020). The
defendant subsequently filed a motion for a new trial, and
later, a renewed motion for a new trial, or, in the alternative,
a new sentencing hearing, both of which the motion judge denied in a single order.1 On appeal, the defendant argues that the
motion judge abused his discretion by denying his motions for a
new trial, including by doing so without holding an evidentiary
hearing. We affirm.
Background. On January 19, 2017, at approximately 8 P.M.,
the defendant and two other men approached the New Family Market
in Dorchester from an alleyway near Humboldt Avenue and Crawford
Street. The defendant wore a mask, maroon hooded sweatshirt,
and black pants; a second man, Richard Greene, was unmasked and
wore a knit cap; and the third man, who was never identified,
wore a mask, green camouflage jacket, and hood. The defendant
was taller than the other two men. Shortly after the three men
entered the market, Greene and the unidentified man pointed
firearms at the market workers, telling them not to move.
During the robbery, the defendant pointed to a cash
register, at which time a distinctive tattoo of an "Adidas"
symbol, located on his right hand, became visible on the
market's surveillance video recording. The robbers took money
from cash registers, money from one of the market workers, and a
box of cigarettes. The three men departed the market through a
rear doorway that was not typically used by customers, where a
1 The defendant filed an initial motion for a new trial in December 2023, and he filed the renewed motion in May 2024. 2 car was waiting for them outside. The robbers entered the car,
and it drove away.
Through subsequent investigation into the armed robbery,
the Boston police department (BPD) determined that the defendant
had a tattoo on his right hand that resembled the tattoo
depicted on the surveillance video recording. In addition, a
BPD database search revealed that out of approximately 1.5
million tattoo images, five people in the database had some form
of an Adidas tattoo on their right hand. Among these people,
only one had a height and build similar to the defendant.
The police also learned through cell phone records that the
defendant and Greene had twenty-six communications on their cell
phones between 3:56 P.M. and 8:51 P.M. on the date of the
robbery. Many of the communications occurred just prior to the
robbery but ceased at 7:21 P.M. There was no such communication
between 8 P.M. and 8:11 P.M., which was the time when the
robbery and getaway occurred. Furthermore, the defendant had
resided immediately across the street from the market.
Discussion. We review the denial of the defendant's motion
for a new trial for an abuse of discretion. See Commonwealth v.
DeJesus, 71 Mass. App. Ct. 799, 811 (2008). Under Mass.
R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), a
judge may grant a new trial only "if it appears that justice may
3 not have been done" (citation omitted). Commonwealth v.
Fanelli, 412 Mass. 497, 504 (1992). "'[A] motion for new trial
may not be used as a vehicle to compel . . . review and
[consideration of] questions of law,' on which a defendant has
had his day in an appellate court, or [on which he has] forgone
that opportunity" (citation omitted) Commonwealth v. Watson,
409 Mass. 110, 112 (1991). "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).
Here, except for the ineffective assistance of counsel
claim, all of the claims raised by the defendant in both his
initial and renewed motions for new trial were knowable and
available at the time of the trial or on direct appeal, they are
waived. See Rodwell, 432 Mass. at 1018. However, "waived
claims, no less than preserved claims, are reviewed on appeal."
Commonwealth v. Santos, 95 Mass. App. Ct. 791, 795 (2019).
However, we review waived claims only to determine if error
occurred, and if so, whether it created a substantial risk of a
miscarriage of justice. See Commonwealth v. Randolph, 438 Mass.
290, 293-295 (2002). "Errors of this magnitude are
extraordinary events and relief is seldom granted." Id. at 297.
4 1. Tattoo expert. The defendant argues that his trial
counsel was ineffective for failing to call a tattoo expert at
trial to conduct a comparison between the defendant's tattoo and
the tattoo depicted on the surveillance video footage.2 We are
not persuaded.
"To prevail on a claim of ineffective assistance of
counsel, the defendant ultimately must show that (1) counsel's
performance fell measurably below that of an ordinary fallible
lawyer, and (2) the defendant suffered prejudice as a result."
Commonwealth v. Santana, 497 Mass. 120, 131 n.13 (2026). If a
claim of ineffective assistance "is based on a tactical or
strategic decision, however, we apply the more rigorous standard
providing that, to be ineffective, the attorney's decision must
have been manifestly unreasonable." Commonwealth v. Henderson,
486 Mass. 296, 302 (2020).
"The decision to call, or not to call, an expert witness
fits squarely within the realm of strategic or tactical
decisions." Henderson, 486 Mass. at 306, quoting Commonwealth
v. Ayala, 481 Mass. 46, 63 (2018). "Where a party in a criminal
trial seeks to offer an expert opinion, the judge, as
2 The defendant did not provide us any images of his tattoo or of the perpetrator's tattoo in either this appeal or his prior appeal.
5 gatekeeper, must first determine whether the proponent of the
evidence has met the five foundational requirements for
admissibility," the first being "that the expert testimony will
assist the trier of fact because the information is beyond the
common knowledge of jurors." Commonwealth v. Polk, 462 Mass.
23, 31 (2012).
Here, the defendant did not offer an affidavit from trial
counsel (or any explanation for the absence of such an
affidavit) leaving us to speculate as to the reasons for
counsel's decision. See Commonwealth v. Martinez, 86 Mass. App.
Ct. 545, 550 (2014) ("in ineffective assistance claims, the
court is entitled to draw a negative inference from the
defendant's failure to secure an affidavit from trial or plea
counsel"). In any event the defendant's argument fails because
comparing photographs of tattoos is not beyond the common
knowledge and experience of jurors. See Coyle v. Cliff Compton,
Inc., 31 Mass. App. Ct. 744, 749-750 (1992) ("Where a matter may
easily be comprehended by jurors the testimony of an expert has
no place" [citation omitted]). In other words, such testimony
would not have been permissible because this "was within an
ordinary juror's common experience." Commonwealth v. Walters,
485 Mass. 271, 291 (2020). Accordingly, the defendant's trial
6 counsel did not make a "manifestly unreasonable" decision by not
calling an expert. Henderson, 486 Mass. at 302.
2. Identification testimony. The defendant contends that
the BPD identified him as one of the robbers through an unduly
suggestive identification process. This argument is misplaced.
"Where a defendant alleges that witness identifications arise from unnecessarily suggestive circumstances, the defendant has the burden to prove, by a preponderance of the evidence, that the witness was subjected by the State to a pretrial confrontation . . . so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny the defendant due process of law" (quotation and citation omitted).
Commonwealth v. Silva-Santiago, 453 Mass. 782, 794-795 (2009).
"In considering whether identification testimony should be
suppressed, the judge must examine 'the totality of the
circumstances attending the confrontation to determine whether
it was unnecessarily suggestive.'" Id. at 795.
Contrary to the defendant's argument, no witness identified
the defendant either in-court or out-of-court or opined that the
person in the image from the surveillance video footage was the
defendant or that the tattoo matched his. To the contrary,
Detective Juan Diaz described the tattoo that drew police
attention and why the police focused their investigation on the
defendant. The jury were presented with evidence of the
perpetrator's tattoo and the defendant's tattoo, from which they
could make their own comparison. See Commonwealth v. Phillips,
7 495 Mass. 491, 495 (2025) (jury can "assess for themselves any
points of similarity [such as facial features, hair, skin color,
build, posture, and height] between the various images in
evidence and the person present in the court room"). We discern
no substantial risk of a miscarriage of justice.
3. Jury selection process. The defendant alleges multiple
errors in the jury selection process, arguing that the trial
judge abused her discretion by (a) not excusing juror 98 for
cause sua sponte and (b) allowing the Commonwealth's peremptory
challenges to jurors 94, 31, and 71. "We afford a trial judge a
large degree of discretion in the jury selection process,"
Commonwealth v. Heywood, 484 Mass. 43, 45 (2020), quoting
Commonwealth v. Vann Long, 419 Mass. 798, 803 (1995), and review
determinations regarding jury selection for an abuse of
discretion. Id.
a. Juror 98. The defendant argues that the trial judge
erred by not excusing juror 98 for cause sua sponte on the basis
of dishonesty. He specifically asserts that juror 98 lied about
whether he was the victim or perpetrator of a past assault. We
disagree.
During individual voir dire, juror 98 stated twice that his
partner was the victim of an assault, and that juror 98 had been
arrested for the assault. At no point did juror 98 claim he was
8 the victim of assault. Moreover, juror 98 stated that the
experience would not affect his impartiality, and the defendant
did not exercise a for-cause or peremptory challenge.
Accordingly, we discern no abuse of discretion on the part of
the trial judge for not sua sponte striking juror 98 for cause.
See Commonwealth v. Clark, 446 Mass. 620, 630 (2006) (trial
judge's "finding that a juror stands indifferent will not be
disturbed except where juror prejudice is manifest").
b. Peremptory challenges. The defendant also alleges
Batson-Soares3 violations with respect to juror 94, and --
interpreting his brief generously -- jurors 31 and 71, arguing
that the Commonwealth's peremptory challenges were impermissibly
based on race.
"The Fourteenth Amendment to the United States Constitution
and art. 12 of the Massachusetts Declaration of Rights prohibit
a party from exercising a peremptory challenge on the basis of
race . . . ." Commonwealth v. Sanchez, 485 Mass. 491, 493
(2020), quoting Commonwealth v. Jones, 477 Mass. 307, 319
(2017). "A Batson-Soares objection to a proposed peremptory
challenge . . . triggers a three-step process." Henderson, 486
3 See Batson v. Kentucky, 476 U.S. 79, 95 (1986), and Commonwealth v. Soares, 377 Mass. 461, 486, cert. denied, 444 U.S. 881 (1979), overruled in part by Commonwealth v. Sanchez, 485 Mass. 491, 511 (2020).
9 Mass. at 311. In the first step, "the challenger 'must make out
a prima facie case' that [the challenge] was impermissibly based
on race or other protected status 'by showing that the totality
of the relevant facts gives rise to an inference of
discriminatory purpose.'" Commonwealth v. Jackson, 486 Mass.
763, 768 (2021), quoting Johnson v. California, 545 U.S. 162,
168 (2005). Second, if such a showing is made, "the burden
shifts to the party exercising the challenge to provide a
'group-neutral' explanation for it" (citation omitted).
Jackson, supra. "Third and finally, the judge must then
determine whether the explanation is both 'adequate' and
'genuine'" (quotation and citation omitted). Id. We review
each step of the Batson-Soares analysis for an abuse of the
i. Juror 94. Juror 944 stated that multiple members of her
family had been convicted of armed robbery and assault in
Boston, but she did not check off the corresponding question on
the jury questionnaire to show the same. She also asserted on
the questionnaire that she had kids when she did not. The
defendant objected to the Commonwealth's peremptory challenge,
4 The defendant asserts that juror 94 was a Black woman. The record reflects the use of female honorifics and defense counsel referred to her as a "person of color."
10 arguing that juror 94 was the second person of color that had
been challenged by the Commonwealth. The trial judge did not
find a pattern of discrimination based on juror 94's "answers"
and that "she didn't read the question well enough to even get
correct whether she had kids; let alone convictions of at least
three people in her family on multiple armed robberies." The
trial judge nonetheless asked the Commonwealth to state its
reasoning, to which the Commonwealth responded that it exercised
the peremptory because juror 94 had multiple family members who
were tried and convicted of similar offenses in Suffolk County.
We discern no abuse of discretion. See Jackson, 486 Mass. at
779 (trial judge did not abuse discretion by allowing
Commonwealth's peremptory challenge to prospective juror whose
"two children had been involved with the criminal justice
system").
ii. Juror 31. Juror 31, a Black man, was initially seated
without objection by either the defendant or the Commonwealth.
But shortly after juror 31 was seated, a check of his board of
probation record showed that he had prior criminal cases that
were prosecuted in Suffolk County -- none of which he disclosed
on his jury questionnaire. The Commonwealth exercised a
peremptory challenge and, before the defendant could object,
explained that its challenge was based on juror 31's prior
11 criminal cases having been prosecuted in Suffolk County, and
that some of those cases involved drugs and a dangerous weapon.
The defendant objected that the Commonwealth's challenge was
based on juror 31's race. The trial judge allowed the
Commonwealth's challenge. The prosecutor's concern regarding
the defendant's failure "to disclose prior involvement with the
court system . . . [was] a legitimate one." Commonwealth v.
Scott, 98 Mass. App. Ct. 843, 848 (2020). Thus, the trial judge
did not abuse her discretion.
iii. Juror 71. Juror 71, a Black man, stated that he had
been arrested for driving with a suspended license and for a
domestic dispute with his wife in Boston. The Commonwealth
exercised a peremptory, which the defendant challenged as
impermissibly based on race. The trial judge found that the
defendant made a prima facie case, and the Commonwealth
explained the challenge was based on juror 71's prior "arrests
in criminal cases in Suffolk County." The trial judge overruled
the defendant's objection after implicitly finding the
Commonwealth's reason was genuine and adequate, stating, "I'm
accepting that [this] has nothing to do with [juror 71's] race."
Given juror 71's experience with the law in Suffolk County, the
judge did not abuse her discretion by denying the defendant's
Batson-Soares challenge. See Commonwealth v. Lopes, 478 Mass.
12 593, 601 (2018) (prospective juror's "two significant
experiences with the law provided a sufficient and obvious basis
for the prosecutor's peremptory challenge").
4. Sentencing. The defendant asserts that his sentence of
fifteen to twenty years in State prison should be revised due to
the disparity between his sentence and Greene's sentence, which
was ten to twelve years in State prison. We disagree.
The proper vehicle for the defendant to request the
revision of his sentence is Mass. R. Crim. P. 29 (a) (2), as
appearing in 489 Mass. 1503 (2022) -- not a motion for a new
trial pursuant to Mass. R. Crim. P. 30, as appearing in 435
Mass. 1501 (2001).
"Rule 29 (a) (2) provides that '[t]he trial judge, upon the judge's own motion, or the written motion of a defendant, filed within sixty days after the imposition of a sentence or within sixty days after issuance of a rescript by an appellate court on direct review, may, upon such terms and conditions as the judge shall order, revise or revoke such sentence if it appears that justice may not have been done.'"
Commonwealth v. Tejeda, 481 Mass. 794, 795-796 (2019), quoting
Mass. R. Crim. P. 29 (a) (2). The "sixty-day time period
established in the rule is absolute and may not be extended."
Commonwealth v. Callahan, 419 Mass. 306, 308 (1995). See
Commonwealth v. DeJesus, 440 Mass. 147, 151 (2003) (Rule 29
motion to revise and revoke subject to "jurisdictional
requirement that it be filed within sixty days after
13 sentencing," and "judge cannot consider such a motion filed
beyond this time frame").
Here, if we construe this portion of the defendant's motion
for a new trial as a Rule 29 motion, his motion fails because it
was untimely, even if we take the latest of three possible dates
to trigger this deadline, this court's rescript on the
defendant's direct appeal issued on January 15, 2021. As a
result, the defendant needed to file a proper Rule 29 motion by
March 16, 2021, or sixty days after issuance. The defendant
filed his renewed motion for a new trial on May 21, 2024 -- over
three years later.5 Thus, the defendant's motion was untimely,
and the motion judge correctly found that he did not have
jurisdiction to consider it.6
In any event, the defendant's argument would fail on the
merits. The defendant argues that there was an unjust disparity
5 The defendant did not argue that his sentences should be reduced in his initial motion for a new trial.
6 As the motion judge noted, the defendant did file a motion to revise or revoke his sentence pursuant to Rule 29 (a) (2) in April 2019. However, that motion did not satisfy the jurisdictional requirements of Rule 29 (a) because it contained no reason that the defendant's sentence should be revised, and the defendant never filed an affidavit accompanying the motion. See DeJesus, 440 Mass. at 152 (judge does not have jurisdiction to consider Rule 29 [a] motion that is not accompanied by affidavit or does not otherwise indicate grounds on which it is based).
14 between his fifteen-to-twenty-year sentence and Greene's ten-to-
twelve-year sentence. See Tejeda, 481 Mass. at 796 ("judge may
take into account a disparity among the sentences of
codefendants"). Here, the defendant was sentenced after being
convicted by a jury of the crime of armed and masked robbery.
After the Commonwealth dismissed a habitual offender charge, the
Commonwealth and the defendant jointly recommended a sentence of
fifteen to twenty years, which the trial judge imposed. In
contrast, Greene accepted responsibility and pleaded guilty.
Moreover, the defendant's claim that Greene had a significant
criminal record is not supported by the record. We discern no
error.7
7 Where none of the defendant's arguments raised a substantial issue, we conclude that the defendant was not entitled to a hearing on his motion for a new trial. See Commonwealth v. Scott, 467 Mass. 336, 344 (2014) ("judge . . . must hold an evidentiary hearing only if the affidavits or the motion itself raises a 'substantial issue' that is supported by a 'substantial evidentiary showing'" [citation omitted]).
15 Conclusion. We conclude that that defendant has not
established any errors and we discern no miscarriage of justice.
Order denying motion for new trial and renewed motion for new trial, or in the alternative a new sentencing hearing, affirmed.
By the Court (Henry, Shin & Toone, JJ.8),
Clerk
Entered: May 8, 2026.
8 The panelists are listed in order of seniority. 16