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
24-P-1409
COMMONWEALTH
vs.
STEVEN F. BARRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Nearly forty-three years after pleading guilty on three
complaints for larceny, the defendant, Steven F. Barry, filed a
motion to vacate his pleas and be granted a new trial. A
District Court judge denied the motion. The defendant appeals,
arguing that his motion and supporting affidavits demonstrated
that his attorney (plea counsel) was ineffective for advising
him to speak to a police officer. We affirm.
Background. We draw the facts from those found by the
motion judge based on the scant record available. Due to the
age of this case, court records (including the complaint, the
original docket, and the audio recording of the plea) are no longer available. 1 In addition to the defendant's affidavit in
support of his motion, the judge considered a Marlborough police
report and arrest report and the defendant's criminal record.
In August 1981, the defendant consulted plea counsel.
According to the defendant's affidavit, plea counsel advised the
defendant to speak to the police, and that if he told the police
"the truth, there would be no conviction and the case would go
away."
The police report documents that in August 1981,
Marlborough police Officer Arthur C. Brodeur met with the
defendant and plea counsel at plea counsel's office. 2 After
waiving his Miranda rights, the defendant told Officer Brodeur
that he was "an alcoholic." The defendant reported that he had
started drinking "a couple of months" earlier and, in late July,
he had stolen checks from a home in Marlborough. The defendant
admitted to the police officer that he had cashed up to eleven
checks in amounts ranging from $45 to $500. The arrest report
reflects that the defendant was arrested and booked on two
1 The record does contain a newer docket, documenting events that transpired beginning in 2024.
2 The police report is somewhat ambiguous about the date of the meeting, and could be read as stating that it took place on August 4, fifteen days before the plea, rather than on the day of the plea, as the defendant's brief represents. Resolution of that ambiguity is unnecessary to our analysis.
2 counts of larceny of property valued at more than one hundred
dollars and one count of larceny of property valued at one
hundred dollars or less, in violation of G. L. c. 266, § 30, St.
1977, c. 979, § 3. 3
On August 19, 1981, the defendant pleaded guilty and was
sentenced to a term of probation and ordered to make
restitution.
In March 2024, the defendant filed a motion seeking to
vacate his pleas and be granted a new trial. 4 The motion was
supported by his own affidavit averring that plea counsel
advised him to "come clean" to Officer Brodeur, and that "[i]t
was my understanding that if I told the Officer the truth, there
would be no conviction and the case would go away once I paid
the money back and got sober." The motion was also supported by
2024 affidavits of two attorneys, each stating that he "never"
would have advised a client to speak to police in the
circumstances reflected in the police report.
3 The typewritten arrest report states that the defendant was arrested on "8/19/81" and booked on "8/18/81." We infer that one of those dates was a typographical error, because the defendant could not have been booked before he was arrested. The discrepancy is immaterial to our analysis.
4 In his motion the defendant requested an evidentiary hearing. He does not press this issue on appeal, and so we do not reach it.
3 At a hearing on the motion, the motion judge pointed out
that it was the defendant's burden "to prove that the [plea]
wasn't knowing, voluntary, and intelligent," but he had not
presented any evidence of "what happened during the plea." The
motion judge denied the motion. The present appeal followed.
Discussion. A motion to withdraw a guilty plea is treated
as a motion for a new trial pursuant to Mass. R. Crim. P.
30 (b), as appearing in 435 Mass. 1501 (2001), and may be
allowed if "it appears that justice may not have been done."
Commonwealth v. Scott, 467 Mass. 336, 344 (2014). See
Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992). A judge
should allow a postsentence motion to withdraw a plea only if
"the defendant comes forward with a credible reason which
outweighs the risk of prejudice to the Commonwealth" (citation
omitted). Commonwealth v. Roberts, 472 Mass. 355, 360 (2015).
We review the denial of a motion for a new trial for "a
significant error of law or other abuse of discretion" (citation
omitted). Commonwealth v. Duart, 477 Mass. 630, 634 (2017),
cert. denied, 584 U.S. 938 (2018). Under the abuse of
discretion standard, "the issue is whether the judge's decision
resulted from 'a clear error of judgment in weighing the factors
relevant to the decision . . . such that the decision falls
outside the range of reasonable alternatives.'" Commonwealth v.
4 Kolenovic, 471 Mass. 664, 672 (2015), quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The defendant argues that plea counsel was ineffective for
advising him to speak to Officer Brodeur and thus deprived him
of his constitutional right to counsel. We assume, without
deciding, that the defendant's right to counsel attached during
the interview. To establish that plea counsel's ineffectiveness
entitled the defendant to a new trial, he was required to show
that (1) plea counsel's performance fell below the standard of
an ordinary, fallible lawyer; and (2) plea counsel's
shortcomings deprived the defendant of an otherwise available,
substantial ground of defense. See Commonwealth v. Saferian,
366 Mass. 89, 96 (1974). See also Commonwealth v. Poum, 496
Mass. 267, 285 (2025); Fanelli, 412 Mass. at 504.
On the first Saferian prong, the motion judge concluded
that the defendant had not "overcome the strong presumption that
. . . the actions of 1981 [plea] counsel were sound trial
strategy." The motion judge was not required to credit the
defendant's own self-serving affidavit about the interview. See
Commonwealth v. Bolton, 92 Mass. App. Ct. 469, 475 (2017) (judge
is free to reject self-serving affidavits offered by defendant
in support of new trial). The motion judge declined the
defendant's request to measure plea counsel's performance by
"what legal advice would be appropriate" in 2024, and instead
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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
24-P-1409
COMMONWEALTH
vs.
STEVEN F. BARRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Nearly forty-three years after pleading guilty on three
complaints for larceny, the defendant, Steven F. Barry, filed a
motion to vacate his pleas and be granted a new trial. A
District Court judge denied the motion. The defendant appeals,
arguing that his motion and supporting affidavits demonstrated
that his attorney (plea counsel) was ineffective for advising
him to speak to a police officer. We affirm.
Background. We draw the facts from those found by the
motion judge based on the scant record available. Due to the
age of this case, court records (including the complaint, the
original docket, and the audio recording of the plea) are no longer available. 1 In addition to the defendant's affidavit in
support of his motion, the judge considered a Marlborough police
report and arrest report and the defendant's criminal record.
In August 1981, the defendant consulted plea counsel.
According to the defendant's affidavit, plea counsel advised the
defendant to speak to the police, and that if he told the police
"the truth, there would be no conviction and the case would go
away."
The police report documents that in August 1981,
Marlborough police Officer Arthur C. Brodeur met with the
defendant and plea counsel at plea counsel's office. 2 After
waiving his Miranda rights, the defendant told Officer Brodeur
that he was "an alcoholic." The defendant reported that he had
started drinking "a couple of months" earlier and, in late July,
he had stolen checks from a home in Marlborough. The defendant
admitted to the police officer that he had cashed up to eleven
checks in amounts ranging from $45 to $500. The arrest report
reflects that the defendant was arrested and booked on two
1 The record does contain a newer docket, documenting events that transpired beginning in 2024.
2 The police report is somewhat ambiguous about the date of the meeting, and could be read as stating that it took place on August 4, fifteen days before the plea, rather than on the day of the plea, as the defendant's brief represents. Resolution of that ambiguity is unnecessary to our analysis.
2 counts of larceny of property valued at more than one hundred
dollars and one count of larceny of property valued at one
hundred dollars or less, in violation of G. L. c. 266, § 30, St.
1977, c. 979, § 3. 3
On August 19, 1981, the defendant pleaded guilty and was
sentenced to a term of probation and ordered to make
restitution.
In March 2024, the defendant filed a motion seeking to
vacate his pleas and be granted a new trial. 4 The motion was
supported by his own affidavit averring that plea counsel
advised him to "come clean" to Officer Brodeur, and that "[i]t
was my understanding that if I told the Officer the truth, there
would be no conviction and the case would go away once I paid
the money back and got sober." The motion was also supported by
2024 affidavits of two attorneys, each stating that he "never"
would have advised a client to speak to police in the
circumstances reflected in the police report.
3 The typewritten arrest report states that the defendant was arrested on "8/19/81" and booked on "8/18/81." We infer that one of those dates was a typographical error, because the defendant could not have been booked before he was arrested. The discrepancy is immaterial to our analysis.
4 In his motion the defendant requested an evidentiary hearing. He does not press this issue on appeal, and so we do not reach it.
3 At a hearing on the motion, the motion judge pointed out
that it was the defendant's burden "to prove that the [plea]
wasn't knowing, voluntary, and intelligent," but he had not
presented any evidence of "what happened during the plea." The
motion judge denied the motion. The present appeal followed.
Discussion. A motion to withdraw a guilty plea is treated
as a motion for a new trial pursuant to Mass. R. Crim. P.
30 (b), as appearing in 435 Mass. 1501 (2001), and may be
allowed if "it appears that justice may not have been done."
Commonwealth v. Scott, 467 Mass. 336, 344 (2014). See
Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992). A judge
should allow a postsentence motion to withdraw a plea only if
"the defendant comes forward with a credible reason which
outweighs the risk of prejudice to the Commonwealth" (citation
omitted). Commonwealth v. Roberts, 472 Mass. 355, 360 (2015).
We review the denial of a motion for a new trial for "a
significant error of law or other abuse of discretion" (citation
omitted). Commonwealth v. Duart, 477 Mass. 630, 634 (2017),
cert. denied, 584 U.S. 938 (2018). Under the abuse of
discretion standard, "the issue is whether the judge's decision
resulted from 'a clear error of judgment in weighing the factors
relevant to the decision . . . such that the decision falls
outside the range of reasonable alternatives.'" Commonwealth v.
4 Kolenovic, 471 Mass. 664, 672 (2015), quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The defendant argues that plea counsel was ineffective for
advising him to speak to Officer Brodeur and thus deprived him
of his constitutional right to counsel. We assume, without
deciding, that the defendant's right to counsel attached during
the interview. To establish that plea counsel's ineffectiveness
entitled the defendant to a new trial, he was required to show
that (1) plea counsel's performance fell below the standard of
an ordinary, fallible lawyer; and (2) plea counsel's
shortcomings deprived the defendant of an otherwise available,
substantial ground of defense. See Commonwealth v. Saferian,
366 Mass. 89, 96 (1974). See also Commonwealth v. Poum, 496
Mass. 267, 285 (2025); Fanelli, 412 Mass. at 504.
On the first Saferian prong, the motion judge concluded
that the defendant had not "overcome the strong presumption that
. . . the actions of 1981 [plea] counsel were sound trial
strategy." The motion judge was not required to credit the
defendant's own self-serving affidavit about the interview. See
Commonwealth v. Bolton, 92 Mass. App. Ct. 469, 475 (2017) (judge
is free to reject self-serving affidavits offered by defendant
in support of new trial). The motion judge declined the
defendant's request to measure plea counsel's performance by
"what legal advice would be appropriate" in 2024, and instead
5 evaluated it from plea counsel's "perspective at the time" in
1981. See Commonwealth v. Velez, 487 Mass. 533, 540 (2021)
(judge evaluating plea counsel's advice should attempt "to
eliminate the distorting effects of hindsight" [citation
omitted]).
Even if we were to credit the defendant's claims that plea
counsel's advice at the interview fell below the standard of an
ordinary, fallible lawyer, the defendant's claim fails as to the
second Saferian prong. The defendant has not shown that plea
counsel's advice deprived him of an otherwise available,
substantial ground of defense, because he has not met his burden
to show that his pleas were not knowing, voluntary, and
intelligent. The defendant's affidavit says nothing about the
plea hearing, and he told the motion judge that he had no memory
of what occurred at it. Absent any showing at all that the
defendant's pleas were not knowing, voluntary, and intelligent,
the motion judge did not err in denying the motion. Cf.
Commonwealth v. Furr, 454 Mass. 101, 109 (2009) (judge permitted
to disbelieve defendant's self-serving affidavit that he did not
understand charges to which he pleaded guilty). As the motion
judge noted, the defendant's inability to meet his burden of
proof was based in part on his own failure to come forward with
his claim for more than four decades. See Commonwealth v.
Haskell, 76 Mass. App. Ct. 284, 293 (2010) (lack of record to
6 support motion for new trial resulted from defendant's
dilatoriness in waiting twenty years after plea to file motion).
In these circumstances, we conclude that the motion judge
did not err or abuse her discretion in denying the motion to
vacate the pleas and for a new trial.
Order dated June 24, 2024, denying motion for new trial, affirmed.
By the Court (Shin, Grant & Hershfang, JJ. 5),
Clerk
Entered: October 8, 2025.
5 The panelists are listed in order of seniority.