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Appeals Court of Massachusetts.



Decided: February 23, 2021

By the Court (Blake, Desmond & Hand, JJ.2)


In August 2009, the defendant pleaded guilty to possession of a firearm without a license and possession of ammunition without a license. In connection with the plea, the judge allowed the Commonwealth's motion to dismiss the indictment charging possession of ammunition without a firearm identification card, and so much of the indictments that charged the defendant as a habitual offender and a level three armed career criminal. Eight years later, in October 2017, the defendant, pro se, filed a motion for new trial, asserting numerous bases. The motion judge, who was also the plea judge, denied the motion without a hearing. On the defendant's appeal, we affirm.

A motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), may be allowed if “it appears that justice may not have been done.” Commonwealth v. Scott, 467 Mass. 336, 344 (2014). The motion, therefore, is committed to the “sound discretion” of the judge.” Commonwealth v. Resende, 475 Mass. 1, 12 (2016), quoting Scott, supra. We review the denial of a motion for new trial “to determine whether the judge abused that discretion or committed a significant error of law.” Resende, supra, citing Scott, supra. “It is the defendant who bears the burden of proof.” Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 44 (2015).

A challenge to a “long-closed conviction[ ] arrived at by plea[ ] ․ must be accompanied by sufficient credible and reliable evidence to rebut a presumption that the prior conviction was valid.” Commonwealth v. Lopez, 426 Mass. 657, 664-665 (1998). Here, the defendant failed to include a transcript of the plea colloquy, and relied on his own affidavit, which the judge was free to reject. See id. at 665 (defendant's conclusory affidavit insufficient to support guilty plea challenge). Given the defendant's argument that he was incorrectly advised of the elements of the offenses with which he was charged, the penalties he faced, and other details of his plea agreement, the defendant's failure to provide an affidavit from plea counsel is notable.3 See Commonwealth v. Bowler, 60 Mass. App. Ct. 209, 213 (2003) (“motion is ․ marred by failing to include an affidavit from his original defense counsel or to explain the absence of such affidavit” [citation omitted]). See also Lopez, supra. Moreover, as was the case here, “[p]articular deference is to be paid to the rulings of a motion judge who served as the [plea] judge in the same case” (citation omitted). Commonwealth v. Sylvester, 476 Mass. 1, 6 (2016). See Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016). “Based on the total lack of credible or reliable evidence to support the defendant's claims, the judge did not abuse his discretion in denying the defendant's motions ․ without further inquiry.” Lopez, supra at 666.

To the extent that the defendant seeks to challenge the denial of his pretrial motion to dismiss, the defendant's guilty plea foreclosed his right to do so. See Commonwealth v. Sylvia, 89 Mass. App. Ct. 279, 287 (2016). See also Commonwealth v. Zion, 359 Mass. 559, 563 (1971) (“If there were any nonjurisdictional defects in the proceedings prior to the time when the defendant pleaded guilty, they were rendered irrelevant by such pleas”).

The same holds true for the defendant's purported challenges to the grand jury presentment. “A guilty plea, once accepted, leads to a final judgment ․; like a verdict of guilty, it is conclusive.” Commonwealth v. Cabrera, 449 Mass. 825, 830 (2007). “By pleading guilty the defendant admitted all facts well charged in the indictments against him” (citation omitted). Sylvia, 89 Mass. App. Ct. at 287. Notwithstanding, the grand jury heard sufficient evidence as two loaded firearms were recovered during the investigation. And the sentencing enhancements were dismissed as part of the plea deal, and are therefore moot. See Commonwealth v. Lewis, 96 Mass. App. Ct. 354, 361 n.7 (2019) (issues on appeal moot where cases against defendant have been dismissed).

The defendant also claims that he was improperly indicted under a John Doe indictment. As this issue was raised for the first time on appeal, it is not properly before us. See Commonwealth v. Cowels, 470 Mass. 607, 617 (2015) (“[a]n issue not raised or argued below may not be argued for the first time on appeal” [citation omitted]). In any event, the grand jury returned an indictment against Dennis Senna, not John Doe.

Order denying motion for new trial affirmed.


3.   We are satisfied that plea counsel is available.

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Docket No: 19-P-106

Decided: February 23, 2021

Court: Appeals Court of Massachusetts.

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