COMMONWEALTH v. HASEOTES (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 1993, the defendant, Vasilios Haseotes, pleaded guilty to possession of a class B substance with the intent to distribute, G. L. c. 94C, § 32A (a), and conspiracy to violate the controlled substances law, G. L. c. 94C, § 40. He now appeals the denial of his 2019 motion to vacate his guilty pleas and for a new trial. Concluding that the motion judge acted within her discretion in discrediting the defendant's affidavit and thus denying him an evidentiary hearing, and that the unavailability of a transcript from a court reporter after twenty-six years is not a violation of due process, we affirm.

1. Standard of review. “A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).” Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). When a defendant appeals from the denial of a motion for a new trial, we review “only to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016), quoting Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015).

2. Ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, “the defendant bears the burden of showing that his attorney's performance fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that he suffered prejudice because of his attorney's unprofessional errors.” Lavrinenko, 473 Mass. at 51, quoting Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). The defendant argues that counsel was ineffective, largely in how he advised the defendant concerning the plea colloquy.² The defendant's showing, however, consists solely of his own affidavit, prepared more than twenty-five years after the guilty plea, which the motion judge expressly discredited as self-serving. It is well settled that a judge “may reject a defendant's self-serving affidavit as not credible.” Commonwealth v. McWilliams, 473 Mass. 606, 621 (2016), quoting Commonwealth v. Colon, 439 Mass. 519, 530 (2003). Accord Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 178 (2018).

Furthermore, contrary to the defendant's argument, “[t]here is no constitutional error in deciding the motion for a new trial on affidavits.” Commonwealth v. Smith, 459 Mass. 538, 556 (2011), quoting Commonwealth v. Stewart, 383 Mass. 253, 257, 259 (1981). A judge confronted with a motion for a new trial supported only by the defendant's self-serving affidavit acts within her discretion in denying the motion without an evidentiary hearing. See Commonwealth v. Rebello, 450 Mass. 118, 130-131 (2007); Gilbert, 94 Mass. App. Ct. at 178-179.

3. Unavailability of a plea transcript. The defendant requested a compact disk of his plea hearing, but his plea hearing was recorded by a court reporter, not the court. The defendant has made no showing -- or even suggested -- that he attempted to contact the court reporter for the preparation of a transcript. By rule, a court reporter must keep the stenographic notes or recording of a court proceeding for six years, S.J.C. Rule 1:12, as appearing in 382 Mass. 717 (1981), but may keep the notes or recording longer if she so wishes.

Even assuming that the court reporter destroyed her notes or recording in accordance with the rule, the defendant's theory that this routine destruction of notes or recording violates due process was rejected by the United States Supreme Court in Parke v. Raley, 506 U.S. 20, 29-30 (1992), even in the serious context in which the old conviction was serving as a predicate for a sentencing enhancement. Here, the defendant had at least six years to challenge his guilty plea and request a transcript, the majority of which occurred after his sentence ended. In such circumstances “the absence of a record, and the inability effectively to reconstruct it, may be directly attributed to the defendant's delay and may be said to be the defendant's fault.” Commonwealth v. Lopez, 426 Mass. 657, 661 (1998). Accordingly, the judge acted within her discretion in denying the defendant's motion to vacate his guilty pleas.

Order denying motion to vacate pleas and for new trial affirmed.

FOOTNOTES

2.   He also alleges that counsel was ineffective in not litigating the defendant's motion to suppress prior to his pleading guilty, but the defendant provides no evidence whatsoever of the grounds for such a motion or that it would have been successful. See Commonwealth v. Fulgiam, 477 Mass. 20, 29 (2017), quoting Commonwealth v. Banville, 457 Mass. 530, 534 (2010) (defendant claiming ineffectiveness from failure to litigate motion to suppress must “show that the motion to suppress would have been successful”).