COMMONWEALTH v. MATOS (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On January 26, 2006, the defendant pleaded guilty to one count of indecent assault and battery on a child over the age of fourteen. The judge sentenced the defendant to a suspended sentence and probation. The defendant was also required to register as a sex offender. On July 13, 2018, the defendant filed a motion for a new trial, seeking to vacate his conviction claiming he was denied effective assistance of counsel. His motion contended that his attorney was ineffective for not advising him of his requirement to register as a sex offender and for failing to request relief from his obligation to register. After an evidentiary hearing, the motion was denied, and the defendant appealed.² We affirm.

Discussion. 1. Standard of review. A motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), is the proper vehicle by which to seek to vacate a guilty plea. Commonwealth v. Fernandes, 390 Mass. 714, 715 (1984). Allowance of the motion for a new trial is appropriate only in extraordinary circumstances. Commonwealth v. Amirault, 424 Mass. 618, 645-646 (1997). Under rule 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. Scott, 467 Mass. 336, 344 (2014). We review a judge's decision on a motion for new trial “to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). On review, we bear in mind that where, as here, the defendant challenges his guilty plea “after court records have been destroyed lawfully pursuant to court rules, the defendant bears the burden of proof.” Commonwealth v. Grannum, 457 Mass. 128, 133 (2010), citing Commonwealth v. Lopez, 426 Mass. 657, 661-662, 664-665 (1998).

2. Registration requirement. The defendant contends that the motion judge erred in finding that the plea judge's notification to the defendant that he must register as a sex offender alleviated plea counsel's obligation to advise the defendant of his requirement to register. This argument finds no support in the record. Contrary to the defendant's contention, the motion judge only made a finding that the plea judge informed the defendant of the registration requirement; there was no finding that the plea judge's notification was sufficient to alleviate plea counsel's alleged duty to inform the defendant of the registration requirement.³ Moreover, the motion judge specifically did not credit the defendant's testimony that plea counsel never informed him about the requirement to register as a sex offender. See Commonwealth v. Bonnet, 482 Mass. 838, 844 (2019) (deference given to motion judge's credibility assessment).

Since “the burden is on the defendant to prove facts that are ‘neither agreed upon nor apparent on the face of the record’ ” (citation omitted), Commonwealth v. Comita, 441 Mass. 86, 93 (2004), his failure to establish that plea counsel never informed him of the requirement to register defeats his claim of ineffective assistance of counsel. As such, the defendant has failed to show there was an error of law, let alone a significant error of law. See Lavrinenko, 473 Mass. at 47, quoting Grace, 397 Mass. at 307 (court reviews motion for new trial for significant error of law).

3. Relief from registration. The defendant also contends the motion judge abused her discretion in denying the motion for a new trial because plea counsel did not affirmatively seek relief from the registration requirement on the defendant's behalf. See G. L. c. 6, § 178E (f) (sentencing judge has discretion to “relieve” the sex offender registration requirement for an individual convicted of a sex offense and who was not sentenced to immediate confinement). Here, 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 the presumption of regularity. Commonwealth v. Lopez, 426 Mass. 657, 661-662 (1998). “In assessing such a challenge, a judge is not required to accept the defendant's self-serving affidavit ․” Id. at 661. Here, the defendant argues that the prosecutor's lack of memory as to whether there was a motion made for relief from registration, and the lack of written findings are evidence that no motion was made. However, the motion judge determined that the evidence presented was insufficient to show that plea counsel failed to file a motion for relief from registration. Because the defendant waited twelve years to bring the motion, there is no recording of the plea, plea counsel is unavailable, and the defendant cannot remember whether there was a hearing on a motion seeking relief from registering as a sex offender. Given the defendant's substantial delay in filing his motion to withdraw his guilty plea, we discern no abuse of discretion in the judge's finding that the defendant failed to show plea counsel did not file a motion for relief from the requirement to register as a sex offender. See L.L. v. Commonwealth, 470 Mass. 169, 185, n.27 (2014); Commonwealth v. Furr, 454 Mass. 101, 109 (2009); Amirault, 424 Mass. at 645-647 (motion for new trial only allowed in extraordinary circumstances). In any event, it would appear that the defendant was not eligible for a waiver since the offense to which he pleaded guilty involved a child. See Commonwealth v. Dalton, 467 Mass. 555, 557-558 (2014) (“where, as here, a defendant is convicted of a sex offense involving a child, the language of § 178E (f) clearly prohibits a judge from ․ relieving the defendant of the obligation to register with [the Sex Offender Registry Board]”).

Where the defendant has failed to establish that he received ineffective assistance of counsel, we discern no abuse of discretion or error of law in the judge's denial of the defendant's motion for a new trial.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   Some time after the plea hearing, the court's tape recording of the hearing was destroyed pursuant to court procedures and no transcript was available. In addition, the attorney who represented the defendant was not able to provide testimony or an affidavit because of health issues and the prosecutor had no memory of the details of the plea proceedings.

3.   The defendant argues that plea counsel was required to inform him of the registration requirement and that the failure to do so fell below the standard required by Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant would have this court hold that the Sixth Amendment to the United States Constitution requires plea counsel to inform the defendant of the registration requirement, extending the holding in Commonwealth v. Sylvester, 476 Mass. 1, 12-14 (2016). We decline to do so in light of the motion judge's failure to credit the defendant's testimony that he was not informed by plea counsel of his requirement to register as a sex offender. See Commonwealth v. Bonnet, 482 Mass. 838, 844 (2019).