COMMONWEALTH v. ALBINO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23

The defendant, Joel Albino, pleaded guilty to one count of indecent assault and battery on a person over the age of fourteen, in violation of G. L. c. 265, § 13H.² Approximately twenty-two years later, the defendant moved for a new trial, seeking to vacate his conviction arguing that the court lacked jurisdiction over the crime. After a hearing, the motion was denied, and the defendant appealed. We affirm.

Background. On June 27, 1995, the defendant was charged in the Gardner Division of the District Court Department with three counts of rape of a child. On December 8, 1995, two of the rape of a child counts were dismissed and the remaining count was amended to indecent assault and battery on a person over the age of fourteen. The defendant admitted sufficient facts to the one count of indecent assault and battery on a person over the age of fourteen. The judge entered a guilty finding and sentenced the defendant.

On December 7, 2017, the defendant filed a motion for a new trial, seeking to vacate his conviction. In his motion, he contended the District Court did not have jurisdiction over the offense since there was no record of the rape of a child charge being amended, and if there was an amended charge of indecent assault and battery on a person over the age of fourteen it was void because it was not a lesser included offense of rape of a child. On appeal, the defendant argues that the motion judge abused his discretion when denying his motion to vacate. We affirm.

Discussion. A motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), is the proper vehicle by which to seek to vacate a guilty plea. Commonwealth v. Fernandes, 390 Mass. 714, 715 (1984). Under Mass. R. Crim. P. 30 (b), a judge may grant a motion for a new trial any time it appears that justice may not have been done. Commonwealth v. Scott, 467 Mass. 336, 344 (2014) “Judges are to ‘apply the standard set out in Mass. R. Crim. P. 30 (b) rigorously,’ and should ‘only grant a postsentence motion to withdraw a plea if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth’ ” (citation omitted). Commonwealth v. Hason, 27 Mass. App. Ct. 840, 844-845 (1989). We review a judge's decision on a motion for new trial “to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

Whether any defects in the complaint are jurisdictional. The defendant's admission of sufficient facts, made knowingly, voluntarily, and with the benefit of competent counsel, waived all nonjurisdictional defects in the complaint prior to the entry of his admission. See Commonwealth v. Fanelli, 412 Mass. 497, 500 (1992). See also Commonwealth v. Senior, 454 Mass. 12, 14 (2009); G. L. c. 277, § 47A.

Here, the defendant argues that the defects in the complaint were jurisdictional, thus permitting the defendant to raise his objection at any time. We disagree. Jurisdictional defects are those that go to the “very power of the State to bring the defendant into court.” Commonwealth v. Clark, 379 Mass. 623, 626 (1980), quoting Blackledge v. Perry, 417 U.S. 21, 30 (1974). Essentially the defendant is challenging the process by which the complaint was amended. The defendant contends first that the motion record was insufficient to establish a “pre-plea amendment” and second that the docket notation, reflecting that the rape of a child charge was amended to indecent assault and battery on a person over the age of fourteen, failed to provide the court with jurisdiction because the amended charge was not a lesser included offense of statutory rape. The notation on the docket reflects that one count of rape of a child was amended to the offense of indecent assault and battery on a person over the age of fourteen and that on December 8, 1995, the defendant admitted sufficient facts to the amended offense. The docket does not include any opposition to or a motion to dismiss the amended complaint. Furthermore, there is no question that the District Court has the power to adjudicate the underlying crime of indecent assault and battery on a person over the age of fourteen by accepting a guilty plea. As such, by pleading guilty to the amended offense of indecent assault and battery on a person over the age of fourteen, the defendant waived his challenge to the validity of the charge. See G. L. c. 277, § 47A.

Even if the defendant's challenge was not waived, where the court records are unavailable due to the passage of time, as is the case here, the defendant seeking to vacate a guilty plea bears an initial burden to rebut the presumption of regularity by raising a substantial issue supported by “sufficient credible and reliable evidence.” Commonwealth v. Lopez, 426 Mass. 657, 665 (1998). The defendant has not met his burden of proof to rebut the presumption of regularity. He has not produced any evidence, such as transcripts or affidavits that provide an explanation of what occurred at the time of the defendant's admission of sufficient facts in 1995. The only evidence presented by the defendant was the docket, which does not support the defendant's contention that there was no amendment. Moreover, the defendant benefitted from pleading guilty to an amended complaint and would not have fared better had he demanded that the rape of a child complaint be dismissed and then had the Commonwealth file a new complaint for indecent assault and battery on a person over the age of fourteen. Finally, the defendant waited twenty-two years to challenge his guilty plea in his motion for a new trial. Id. at 663 (“dilatoriness in not directly challenging his plea will often suggest that, when the plea was made, the defendant was satisfied with his arrangement”).

On this record, we see no error of law or other abuse of discretion in the denial of the defendant's motion for a new trial.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   The District Court docket reflects the defendant admitted to sufficient facts on the count of “indecent A & B on child over.” See Commonwealth v. Greene, 400 Mass. 144, 145-46 (1987) (admission to sufficient facts is functional equivalent of guilty plea if admission was made knowingly and voluntarily).