COMMONWEALTH v. LYNCH (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In November 1991, the defendant, Joseph W. Lynch, admitted to sufficient facts to warrant guilty findings on offenses of receiving stolen property, G. L. c. 266, § 60, and evading a railway fare, G. L. c. 159, § 101, and was found guilty by a Boston Municipal Court judge. The defendant, receiving a suspended sentence of ten days in a house of correction, did not exercise his right to a trial de novo. The defendant now appeals from the order denying his 2018 motion seeking to “vacate his guilty plea.” Concluding that the plea judge, who was also the motion judge, acted within his discretion in finding that the defendant did not demonstrate that counsel was ineffective, we affirm.

“A motion to vacate an admission to sufficient facts is treated as a motion for a new trial.” Commonwealth v. Muniur M., 467 Mass. 1010, 1011 (2014). “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. Williams, 89 Mass. App. Ct. 383, 387 (2016), quoting Commonwealth v. Scott, 467 Mass. 336, 344 (2014). “We review the denial of a motion to withdraw a guilty plea to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Lewis, 96 Mass. App. Ct. 354, 357 (2019), quoting Commonwealth v. Lastowksi, 478 Mass. 572, 575 (2018). “Particular deference is to be paid to the rulings of a motion judge who served as the [plea] judge in the same case.” Commonwealth v. Sylvester, 476 Mass. 1, 6 (2016), quoting Scott, supra.

“Ineffective assistance of counsel requires ‘behavior of counsel failing measurably below that which might be expected from an ordinary fallible lawyer,’ which ‘likely deprived the defendant of an otherwise available, substantial ground of defen[s]e.’ ” Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 175 (2018), quoting Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 44 (2015). The defendant argues that counsel was ineffective in not moving to suppress, failing to review discovery with the defendant, failing to retain an investigator, and failing to advise the defendant adequately. Because the admissions occurred prior to the abolition of trial de novo, the defendant could have requested a jury trial de novo as of right and taken all of those steps had he been dissatisfied with the disposition. See Commonwealth v. Mercado, 474 Mass. 80, 82 n.5 (2016). Admitting to sufficient facts at the first stage cost the defendant nothing.

Furthermore, the defendant has produced no evidence that he had a viable motion to suppress, that review of discovery would have been helpful, or that an investigator would have obtained useful information. See Commonwealth v. Barry, 481 Mass. 388, 406 (2019) (“The burden was on the defendants to prove the facts underlying their motion [for a new trial]”); Gilbert, 94 Mass. App. Ct. at 172, quoting Ubeira-Gonzalez, 87 Mass. App. Ct. at 41 (“The defendant bears the burden of proof on a motion to withdraw a guilty plea and must ‘prove facts that are “neither agreed upon nor apparent on the face of the record” ’ ”). The defendant has not provided any police reports that would detail the basis for the seizure of the defendant, any discoverable material that would have been relevant to the defendant's decision making, or any other evidence that an investigator could have found. That such evidence is likely unobtainable because of the passage of time is chargeable to the defendant. See Commonwealth v. Comita, 441 Mass. 86, 94 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (“[W]here evidence that would have been available for a timely filed motion is no longer available due to the passage of time, one cannot determine what the likely outcome of a timely filed motion would have been. In that situation, a defendant has not shown that counsel's failure to file the motion was of any consequence at all, let alone met the burden of showing that counsel's failure to file the motion deprived h[im] of ‘a substantial ground of defence’ ”). From all that it appears, the defendant was satisfied with the disposition he received for more than twenty years. See Commonwealth v. Tokarev, 87 Mass. App. Ct. 819, 821 (2015) (“[T]he favorable disposition itself, and the fact that the defendant did not raise any objection to the validity of his plea ․ are strong indications that the defendant accepted the disposition”).

Order denying motion to vacate affirmed.