COMMONWEALTH v. ROSADO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In 1996, the defendant, Andre Rosado, pleaded guilty in Superior Court to unlawful possession of a class B substance with the intent to distribute, see G. L. c. 94C, § 32A (a), and possession of cocaine, see G. L. c. 94C, § 34. Between 2007 and 2012, the defendant filed three motions to withdraw his guilty pleas, all of which were denied, and no appeal was filed.² The defendant now appeals from the order denying his fourth motion to withdraw his guilty pleas. Concluding that the motion judge acted within her discretion in not crediting the defendant's allegations, we affirm.

“[W]e review the denial of a motion for a new trial for ‘a significant error of law or other abuse of discretion.’ ” Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). “An evidentiary hearing is not required unless the defendant raises a ‘substantial issue,’ based on the seriousness of the claim and the adequacy of his showing.” Commonwealth v. Bolton, 92 Mass. App. Ct. 469, 475 n.8 (2017), quoting Commonwealth v. Chatman, 466 Mass. 327, 334 (2013).

More than fifteen years after the defendant's pleas, the lead police officer in the defendant's case was fired for misconduct arising out of his friendship with one or more drug dealers, including Lazaro Paulino. The defendant alleges that the officer threatened the defendant if he did not return a watch belonging to Paulino and then invented the drug transactions in question.

As the defendant suggests, in considering claims of this nature, we apply the standard set forth in Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006). See Commonwealth v. Scott, 467 Mass. 336, 346 (2014). “First, [the defendant] must show that some egregiously impermissible conduct (say, threats, blatant misrepresentation, or untoward blandishments by government agents) antedated the entry of his plea. Second, he must show that the misconduct influenced his decision to plead guilty” (citations omitted). Ferrara, supra. Absent the applicability of a “conclusive presumption” of “egregious government misconduct,” Scott, supra at 352, the defendant must demonstrate more than the mere existence of misconduct; he must “demonstrate that the misconduct occurred in his case.” Commonwealth v. Wallace, 92 Mass. App. Ct. 7, 12 (2017), quoting Scott, supra at 351.

Here, the only evidence presented by the defendant that the officer committed misconduct in the defendant's case appears in the defendant's uncorroborated, self-serving affidavit. “The motion judge was not required to credit any claims ․ in the defendant's self-serving affidavit.” Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 178 (2018).

The motion judge had ample reason to discredit the defendant's affidavit.³ Although the defendant avers that he told plea counsel of the officer's misconduct before the pleas, the defendant provided no affidavit from plea counsel or a description of any rebuffed attempts to secure one. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 640-641 (2007). See also Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551 (2014) (defendant may defeat adverse inference from absence of plea counsel affidavit by filing “affidavits attesting to plea counsel's lack of cooperation”). Similarly, the fact that the defendant waited more than twenty years, while filing three other motions to withdraw his guilty pleas, without mentioning that the lead officer had framed him at the behest of a drug dealer could provide some basis for skepticism. See Commonwealth v. Masonoff, 70 Mass. App. Ct. 162, 171 (2007). The mere fact that the officer was known to have tipped off a drug dealer more than fifteen years after the pleas is inadequate corroboration of the defendant's claim.

Because the motion judge acted within her discretion in discrediting the defendant's self-serving affidavit, and no other significant evidence was presented that misconduct occurred in the defendant's case, the motion judge properly denied the defendant's motion to withdraw his guilty pleas.

Order denying fourth motion for new trial affirmed.

FOOTNOTES

2.   The defendant also filed a motion to expunge in 2014, which was denied. A panel of this court affirmed that order. See Commonwealth v. Rosado, 88 Mass. App. Ct. 1113 (2015).

3.   The motion judge denied the motion for the reasons stated in the Commonwealth's opposition, and the Commonwealth's lead argument was that the defendant's affidavit should be disbelieved.