COMMONWEALTH v. GODEK (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On September 18, 1987, the defendant pleaded guilty in the District Court to operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24 (1) (a) (1). Nearly thirty years later, apparently motivated by a suspension of her driver's license, the defendant filed a motion for a new trial arguing that her guilty plea was not intelligently made. Specifically, the defendant claimed that the plea judge did not adequately advise her of the constitutional protections she was giving up by pleading guilty. A judge other than the plea judge denied the motion, reasoning that the defendant had failed to establish that the guilty plea colloquy was deficient.

Approximately eighteen months later, represented by new postconviction counsel, the defendant filed a second motion to vacate her guilty plea. The defendant reasserted her claim that her guilty plea was not knowing and voluntary and argued that her first postconviction counsel was ineffective for failing to adequately reconstruct the record of the defendant's guilty plea. A third judge denied the motion, concluding that prior postconviction counsel was not ineffective and that the affidavits the defendant submitted in support of her motion failed to raise a substantial issue. On appeal, the defendant contends that it was an abuse of discretion not to vacate the guilty plea for ineffective assistance of counsel. We affirm.

“A motion to withdraw a guilty plea is treated as a motion for a new trial,” Commonwealth v. Furr, 454 Mass. 101, 106 (2009), and is “committed to the sound discretion of the judge.” Commonwealth v. Scott, 467 Mass. 336, 344 (2014). “A strong policy of finality limits the grant of new trial motions to exceptional situations, and such motions should not be allowed lightly.” Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012). To prevail on her motion to withdraw her plea for ineffective assistance of counsel, the defendant was required to “show[ ] that [her] attorney's performance fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that [s]he suffered prejudice because of [her] attorney's unprofessional errors.” Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting Commonwealth v. Clarke, 460 Mass. 30, 45 (2011).

In support of her second motion to vacate her guilty plea, the defendant averred in an affidavit that she was not made aware of the constitutional rights that she was giving up by pleading guilty and that she would have elected to proceed to trial if she had been adequately advised by her attorney and the judge. In addition, the defendant submitted an affidavit from her plea counsel. Although plea counsel did not remember the defendant or the case, he stated that, in his experience representing several “clients during change of plea hearings,” the plea judge did not conduct complete guilty plea colloquies. According to the defendant, her first postconviction counsel was constitutionally ineffective for failing to secure these affidavits to support her first motion for a new trial.

There is a presumption of regularity in plea proceedings. Commonwealth v. Lopez, 426 Mass. 657, 662 (1998). Where the record of a change of plea hearing is no longer available due to the defendant's delay in challenging the plea proceeding, the burden is on the defendant to rebut that presumption of regularity. Id. at 661. “In assessing such a challenge, a judge is not required to accept the defendant's self-serving affidavit.” Id.

Here, the record reflects that at the time of the defendant's guilty plea, she had already had a bench trial on the OUI charge and been convicted. Under the trial de novo system in place at the time, the defendant exercised her right to appeal her conviction to a District Court jury of six session. Id. See Commonwealth v. Russell, 37 Mass. App. Ct. 152, 155 (1994). Thereafter, she withdrew her appeal and elected to plead guilty.

The defendant's affidavit states only that she did not understand the “constitutional rights” she was giving up by pleading guilty. She does not explain further what constitutional protection she did not understand or why her lack of understanding would have prompted a decision to proceed to trial a second time. In these circumstances, the motion judge would have been justified in questioning the credibility of the defendant's claims that she did not understand that she was giving up her right to a trial, her right to confront her accusers, and her right to remain silent at trial. See Mass. R. Crim. P. 12 (c) (3), as amended, 482 Mass. 1499 (2019). Simply put, we see no abuse of discretion in the judge's rejection of the defendant's self-serving claim that she was not aware of the consequences of her guilty plea.

The affidavit of the defendant's trial counsel added little of significance. He had no memory of the case and no memory of the defendant. He simply reiterated information that was before the first motion judge -- that the plea judge typically did not conduct complete guilty plea colloquies. On this record, we cannot reasonably conclude that postconviction counsel's choice not to include the affidavits of the defendant or her trial counsel fell measurably below the performance of an ordinary fallible lawyer, or that inclusion of the affidavits would have made a difference.

Order denying motion to vacate guilty plea affirmed.