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-890
COMMONWEALTH
vs.
XEDRIK X., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The juvenile appeals from the orders denying his motions to
vacate his 2004 delinquency pleas to charges of larceny of
property valued at $250 or more, G. L. c. 266, § 30, and
tampering with a fire alarm, G. L. c. 268, § 32. The juvenile
argues that his plea counsel was ineffective and that a Juvenile
Court judge abused her discretion in declining to grant an
evidentiary hearing on his motions. We affirm.
Background. On October 4, 2004, a complaint issued
charging the juvenile, then fifteen years old, with larceny of
property valued at $250 or more. Ten days later, another
complaint issued charging the juvenile with tampering with a
fire alarm. At arraignment in both cases, an attorney (plea counsel) was appointed to represent the juvenile. On November
15, 2004, the juvenile tendered pleas in both cases. The
dockets reflect that a Juvenile Court judge (plea judge)
conducted a colloquy with the juvenile, though a recording of
that colloquy is no longer available. The plea judge accepted
the pleas and placed the juvenile on probation for one year.
About eleven months later, warrants issued in both cases
alleging that the juvenile was in violation of probation. A
different attorney (probation counsel) was appointed to
represent the juvenile. The juvenile was found in violation of
probation, and his probation was extended and later terminated.
About eighteen years after his pleas, and represented by
new counsel (motion counsel), the juvenile moved pursuant to
Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001),
to vacate his plea on the charge of tampering with a fire alarm.
In support of that motion, the juvenile submitted his own
affidavit, averring that after plea counsel was appointed, "[w]e
did not discuss the rights that I would be giving up in order to
plead out, nor did we discuss any alternatives." The juvenile
did not submit any affidavit of plea counsel, but did submit an
affidavit of motion counsel describing his unsuccessful attempts
to reach plea counsel by telephone and by letter. Because the
plea judge had retired, a different Juvenile Court judge (motion
2 judge) considered the motion and denied it after a
nonevidentiary hearing.
Over one year later, in May 2024, the juvenile filed a
similar motion to vacate his plea on the charge of larceny of
property valued at $250 or more.1 The juvenile supported that
motion with his own affidavit averring that "[n]one of the
missing items were ever found in my possession," and "[t]here
were other children staying at the house when the items were
reported missing." The juvenile's affidavit referred by name to
probation counsel as having "advised me to plead delinquent to
the charges," in contrast to the docket that shows that it was
plea counsel who represented the juvenile at the plea. In
support of that motion, the juvenile again submitted no
affidavit of plea counsel, but did submit an affidavit of motion
counsel describing her contacts with probation counsel, who had
neither any specific memory of the case nor any file. The
motion judge denied that motion without a hearing.
The juvenile timely appealed from the orders denying his
motions. The appeals were consolidated in this court.
1 The juvenile was represented by motion counsel and another attorney in the same law firm. For the sake of simplicity we refer to each of them as motion counsel.
3 Discussion. A motion to withdraw a guilty plea, which is
treated as a motion for a new trial pursuant to Mass.
R. Crim. P. 30 (b), may be allowed if "it appears that justice
may not have been done." Commonwealth v. Scott, 467 Mass. 336,
344 (2014). Because the motion judge was not the plea judge and
based her ruling on affidavits, we are in as good a position as
she to make that determination. See Commonwealth v. Perkins,
450 Mass. 834, 845 (2008). "[W]e 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).
1. Ineffective assistance of counsel. The juvenile
asserts that plea counsel did not investigate any potential
defenses and did not ensure that the pleas were knowing,
voluntary, and intelligent, and argues that as a result plea
counsel's representation was ineffective and prejudiced the
juvenile. Thus, the juvenile contends, the motion judge abused
her discretion in denying his motions to vacate the pleas.
Because the juvenile moved to vacate his pleas eighteen and
nineteen years after he tendered them, no audio recording or
transcript of the plea proceedings is available. See
Commonwealth v. Lopez, 426 Mass. 657, 661 (1998). In those
circumstances, "[t]he presumption of regularity and the policy
4 of finality . . . come into play . . . to place on the
[juvenile] the requirement of showing some basis that adequately
supports a negation of his convictions." Commonwealth v. Hoyle,
67 Mass. App. Ct. 10, 14 (2006), quoting Commonwealth v. Grant,
426 Mass. 667, 671 (1998).
To establish that he was entitled to a new trial, the
juvenile was required to show that plea counsel's performance
fell below the standard of an ordinary, fallible lawyer, and
that counsel's shortcomings deprived him "of an otherwise
available, substantial ground of defence." Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). As evidence of plea
counsel's ineffectiveness, the juvenile offered only his own
affidavits (RA 29, 61-62) and those of motion counsel. The
motion judge found that the juvenile "did not exhaust all
efforts to obtain a response from" plea counsel. Motion
counsel's affidavit describing unsuccessful attempts to contact
plea counsel did not excuse the absence of an affidavit from
plea counsel. See Commonwealth v. Miller, 101 Mass. App. Ct.
344, 353 (2022) ("An affidavit stating that trial counsel
'refused to support the motion' or 'would not cooperate with
successor counsel,' without more, is inherently vague and
susceptible to varied interpretations"). Contrast Commonwealth
v. Watt, 493 Mass. 322, 333 (2024) (affidavits from both
5 prosecution and defense counsel corroborated juvenile's claim
that lead counsel was sleeping during trial).
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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-890
COMMONWEALTH
vs.
XEDRIK X., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The juvenile appeals from the orders denying his motions to
vacate his 2004 delinquency pleas to charges of larceny of
property valued at $250 or more, G. L. c. 266, § 30, and
tampering with a fire alarm, G. L. c. 268, § 32. The juvenile
argues that his plea counsel was ineffective and that a Juvenile
Court judge abused her discretion in declining to grant an
evidentiary hearing on his motions. We affirm.
Background. On October 4, 2004, a complaint issued
charging the juvenile, then fifteen years old, with larceny of
property valued at $250 or more. Ten days later, another
complaint issued charging the juvenile with tampering with a
fire alarm. At arraignment in both cases, an attorney (plea counsel) was appointed to represent the juvenile. On November
15, 2004, the juvenile tendered pleas in both cases. The
dockets reflect that a Juvenile Court judge (plea judge)
conducted a colloquy with the juvenile, though a recording of
that colloquy is no longer available. The plea judge accepted
the pleas and placed the juvenile on probation for one year.
About eleven months later, warrants issued in both cases
alleging that the juvenile was in violation of probation. A
different attorney (probation counsel) was appointed to
represent the juvenile. The juvenile was found in violation of
probation, and his probation was extended and later terminated.
About eighteen years after his pleas, and represented by
new counsel (motion counsel), the juvenile moved pursuant to
Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001),
to vacate his plea on the charge of tampering with a fire alarm.
In support of that motion, the juvenile submitted his own
affidavit, averring that after plea counsel was appointed, "[w]e
did not discuss the rights that I would be giving up in order to
plead out, nor did we discuss any alternatives." The juvenile
did not submit any affidavit of plea counsel, but did submit an
affidavit of motion counsel describing his unsuccessful attempts
to reach plea counsel by telephone and by letter. Because the
plea judge had retired, a different Juvenile Court judge (motion
2 judge) considered the motion and denied it after a
nonevidentiary hearing.
Over one year later, in May 2024, the juvenile filed a
similar motion to vacate his plea on the charge of larceny of
property valued at $250 or more.1 The juvenile supported that
motion with his own affidavit averring that "[n]one of the
missing items were ever found in my possession," and "[t]here
were other children staying at the house when the items were
reported missing." The juvenile's affidavit referred by name to
probation counsel as having "advised me to plead delinquent to
the charges," in contrast to the docket that shows that it was
plea counsel who represented the juvenile at the plea. In
support of that motion, the juvenile again submitted no
affidavit of plea counsel, but did submit an affidavit of motion
counsel describing her contacts with probation counsel, who had
neither any specific memory of the case nor any file. The
motion judge denied that motion without a hearing.
The juvenile timely appealed from the orders denying his
motions. The appeals were consolidated in this court.
1 The juvenile was represented by motion counsel and another attorney in the same law firm. For the sake of simplicity we refer to each of them as motion counsel.
3 Discussion. A motion to withdraw a guilty plea, which is
treated as a motion for a new trial pursuant to Mass.
R. Crim. P. 30 (b), may be allowed if "it appears that justice
may not have been done." Commonwealth v. Scott, 467 Mass. 336,
344 (2014). Because the motion judge was not the plea judge and
based her ruling on affidavits, we are in as good a position as
she to make that determination. See Commonwealth v. Perkins,
450 Mass. 834, 845 (2008). "[W]e 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).
1. Ineffective assistance of counsel. The juvenile
asserts that plea counsel did not investigate any potential
defenses and did not ensure that the pleas were knowing,
voluntary, and intelligent, and argues that as a result plea
counsel's representation was ineffective and prejudiced the
juvenile. Thus, the juvenile contends, the motion judge abused
her discretion in denying his motions to vacate the pleas.
Because the juvenile moved to vacate his pleas eighteen and
nineteen years after he tendered them, no audio recording or
transcript of the plea proceedings is available. See
Commonwealth v. Lopez, 426 Mass. 657, 661 (1998). In those
circumstances, "[t]he presumption of regularity and the policy
4 of finality . . . come into play . . . to place on the
[juvenile] the requirement of showing some basis that adequately
supports a negation of his convictions." Commonwealth v. Hoyle,
67 Mass. App. Ct. 10, 14 (2006), quoting Commonwealth v. Grant,
426 Mass. 667, 671 (1998).
To establish that he was entitled to a new trial, the
juvenile was required to show that plea counsel's performance
fell below the standard of an ordinary, fallible lawyer, and
that counsel's shortcomings deprived him "of an otherwise
available, substantial ground of defence." Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). As evidence of plea
counsel's ineffectiveness, the juvenile offered only his own
affidavits (RA 29, 61-62) and those of motion counsel. The
motion judge found that the juvenile "did not exhaust all
efforts to obtain a response from" plea counsel. Motion
counsel's affidavit describing unsuccessful attempts to contact
plea counsel did not excuse the absence of an affidavit from
plea counsel. See Commonwealth v. Miller, 101 Mass. App. Ct.
344, 353 (2022) ("An affidavit stating that trial counsel
'refused to support the motion' or 'would not cooperate with
successor counsel,' without more, is inherently vague and
susceptible to varied interpretations"). Contrast Commonwealth
v. Watt, 493 Mass. 322, 333 (2024) (affidavits from both
5 prosecution and defense counsel corroborated juvenile's claim
that lead counsel was sleeping during trial).
Based on the docket, the motion judge noted that the plea
judge had given the juvenile the appropriate immigration
warnings; from that, the motion judge inferred that the plea
judge also had conducted an appropriate plea colloquy. Also
based on the docket, the motion judge noted that at the time of
his pleas the juvenile was being held in custody. The judge
found that "[i]t is not unusual for someone in custody to trade
their release from confinement for a global resolution on open
criminal cases, which the Court infers happened in this case."
Because the juvenile's pleas resulted in favorable sentences --
only one year of probation -- the record supports an inference
that they were entered with his voluntary and intelligent
agreement. See Commonwealth v. Furr, 454 Mass. 101, 112 (2009)
("generous" sentence recommendation resulting from youthful
offender's plea "strongly supports the conclusion that the
defendant chose voluntarily to plead").
In these circumstances, we conclude that the motion judge
did not abuse her discretion in "reject[ing] as not credible the
[juvenile's] self-serving, conclusory affidavit[s]." Grant, 426
Mass. at 673. See Furr, 454 Mass. at 109 (affirming denial of
motion to withdraw plea where "defendant has presented no
6 evidence, other than the statements contained in his
affidavit").
2. Lack of evidentiary hearings. The juvenile also argues
that the motion judge abused her discretion in declining to hold
evidentiary hearings on the motions. When considering a motion
pursuant to Mass. R. Crim. P. 30 (b), "[a] judge may make the
ruling based solely on the affidavits and 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). Commonwealth v.
Lastowski, 478 Mass. 572, 575 (2018) (affirming decision of
trial judge who denied motion to withdraw guilty pleas without
evidentiary hearing). In his motions, the juvenile requested
evidentiary hearings, but did not raise a "substantial issue"
that would require one, Mass. R. Crim. P. 30 (c) (3). "There
was no abuse of discretion in the motion judge's refusal to hold
7 an evidentiary hearing on an allegation supported only by the
[juvenile's] self-serving affidavit[s]." Commonwealth v. Denis,
442 Mass. 617, 634 (2004).
Orders dated August 25, 2023, and May 31, 2024, denying motions to vacate delinquency pleas, affirmed.
By the Court (Hand, Grant & Wood, JJ.2),
Clerk
Entered: May 30, 2025.
2 The panelists are listed in order of seniority.