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Appeals Court of Massachusetts.



Decided: February 16, 2021

By the Court (Vuono, Rubin & Sullivan, JJ.1)


In 1963, the defendant pleaded guilty to breaking and entering in the nighttime with intent to steal. The defendant now appeals from the denial of his motion to vacate his guilty plea, claiming that his plea was not knowing or voluntary. See Mass. R. Civ. P. 30 (b), as appearing in 435 Mass. 1501 (2001). We affirm.

At the time of his plea, the defendant was twenty years old. He was sentenced to five years and a day, suspended, thirty-one days' credit for time served, and was placed on probation for ten years. His probation was terminated on February 2, 1971.

In 2019, over fifty-five years after his conviction, which had subsequently been sealed, the defendant filed a motion to vacate his 1963 plea.2 Relying on Boykin v. Alabama, 395 U.S. 238, 239 (1969), the defendant submitted an affidavit stating that both his lawyer and the judge failed to advise him that he had a right to go to trial and to cross-examine witnesses, and that he would not have pleaded guilty had he been so advised. During the intervening decades, the contemporaneous plea record was destroyed by the district attorney's office. The defendant's trial counsel in the 1963 case died. A judge of the Superior Court denied the defendant's motion, stating “on this record as available, the defendant has not met his burden to vacate his 1963 plea.”

Discussion. “A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b). We review the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion” (quotations and citations omitted). Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016). “A judge is required to conduct an evidentiary hearing on a motion for a new trial only if a substantial issue is raised by the motion or affidavits.” Commonwealth v. Torres, 469 Mass. 398, 402 (2014). See Mass. R. Crim. P. 30 (c) (3). “ ‘[A] judge considers the seriousness of the issues raised and the adequacy of the defendant's showing on those issues.’ ” Commonwealth v. Pina, 481 Mass. 413, 435 (2019), quoting Torres, supra at 402-403.

The judge did not abuse her discretion. Boykin was decided after the plea in question and is not retroactive. See Commonwealth v. Leate, 367 Mass. 689, 693 (1975); Andrews v. Commonwealth, 361 Mass. 722, 726 (1972).3 “The burden to show involuntariness thus remain[ed] on the defendant[ ].” Leate, supra at 693-694. It was the defendant's burden to show the existence of a substantial issue, to “provide sufficient credible and reliable factual evidence to overcome the presumption that the judge properly conducted his plea proceeding” (citation and quotation omitted). Commonwealth v. Yardley Y., 464 Mass. 223, 227 (2013). See Torres, 469 Mass. at 402. There was no showing that the plea was involuntary. See Leate, supra. The defendant's nearly six-decade long delay in bringing the motion rendered the record unavailable. The judge was not required to credit the defendant's affidavit, particularly in consideration of the delay, and even if she had, it did not state facts supporting a constitutional violation or other substantial issue. The judge acted well within her discretion in concluding that the defendant had not made a showing adequate to warrant an evidentiary hearing or the relief requested. See Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 551 (2002).4

Order denying motion for new trial affirmed.


2.   The impetus for the motion was the city of Boston's 2013 denial of his request for a license to carry a firearm, which he represents he would use to hunt. He had previously been granted a firearms license in 1999 and provided a hunting certificate.

3.   Those Federal Circuit Courts of Appeals to have considered the question have declined to apply Boykin retroactively. See United States ex rel. Rogers v. Adams, 435 F.2d 1372, 1374 (2d Cir. 1970); United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3rd Cir. 1969); Kibert v. Blankenship, 611 F.2d 520 (4th Cir. 1979); Dominguez v. Henderson, 447 F.2d 207, 209 (5th Cir. 1971); Reeves v. Mabry, 615 F.2d 489 (8th Cir. 1980); Moss v. Craven, 427 F.2d 139, 140 (9th Cir. 1970); Perry v. Crouse, 429 F.2d 1083, 1085 (10th Cir. 1970); Horace v. Wainwright, 781 F.2d 1558 (11th Cir. 1986).

4.   In passing, the defendant alternatively states that counsel was ineffective in handling the plea negotiations. This argument was not raised in the trial court and there is no evidence in the record to support it.

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