COMMONWEALTH v. JOSHUA DAVOREN (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from two orders entered by different judges of the District Court denying his motions which sought to vacate guilty pleas entered in 2010 and 2011 in two separate cases. Because the issues raised in both appeals are largely identical, they were paired for consideration by the same panel of this court. For the reasons that follow, we affirm.

Background. On November 12, 2010, the defendant pleaded guilty to assault with a dangerous weapon, G. L. c. 265, § 15B (b) (docket no. 0942CR000521) (2009 case). The charge stemmed from an incident that began as a verbal altercation inside a Cumberland Farms store and escalated when the defendant followed the victim to the parking lot, got in his car and drove directly at the victim who escaped injury by jumping out of the way.² There was no agreed on recommendation. After rejecting the defendant's request for a continuance without a finding, the judge accepted the defendant's guilty plea and sentenced him to one year of probation with certain conditions.

On May 3, 2011, the defendant pleaded guilty to assault and battery, G. L. c. 265, § 13A, and witness intimidation, G. L. c. 268, § 13B (docket no. 1142CR000058) (2011 case). These charges stemmed from a physical altercation between the defendant and his mother. In an affidavit, the mother averred that she was attempting to call the defendant's probation officer when the defendant yelled, cursed, and threatened her by repeatedly stating that she “would regret it.” The defendant then forced his mother to the floor, reached toward her throat, and took away her phone.³ The judge adopted the defendant's proposed disposition of ninety days to serve with the balance suspended for six months.

Thereafter, in May 2015, a grand jury returned indictments charging the defendant with possession of a shotgun and ammunition having been previously convicted of two violent crimes (2015 case). One of the violent crimes was the assault and battery to which the defendant pleaded guilty in the 2011 case. The other violent crime was the assault with a dangerous weapon to which the defendant pleaded guilty in the 2009 case.

Before trial commenced on the possession of a shotgun and ammunition indictments, the defendant sought to withdraw his guilty pleas and filed motions for a new trial in the 2009 and 2011 cases.⁴ Those motions remained pending at the time the defendant's jury trial in the Superior Court concluded and he was convicted of the firearm offenses. In a separate jury trial, he was convicted of being a felon in possession of a firearm after having been previously convicted of one violent crime.⁵ In 2018, following the convictions in the 2015 case, both new trial motions were denied by margin endorsements entered by the two judges who had presided over the plea hearings.⁶ In 2024, the defendant filed a motion to reconsider and amend motion to withdraw guilty plea in the 2009 case and a renewed motion to withdraw guilty plea in the 2011 case. The plea judge in the 2009 case denied the defendant's motion in that case in a well-reasoned memorandum of decision. The plea judge in the 2011 case denied the defendant's renewed motion by margin endorsement. The defendant appealed from the orders denying those motions.

Discussion. The defendant claims that his guilty pleas were not made knowingly and voluntarily because neither judge advised him that by pleading guilty he would permanently lose his right to bear arms under the Second Amendment to the United States Constitution. He further claims that his counsel in both cases provided ineffective assistance because they too failed to inform him that by pleading guilty he would lose his right to possess a firearm. According to the defendant, despite the favorable dispositions he received, had he fully understood the consequences of pleading guilty, he would have gone to trial.

A judge has discretion to allow a defendant's motion to withdraw his guilty plea “at any time if it appears that justice may not have been done.” Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Ferreira, 481 Mass. 641, 648 (2019). “We review the denial of a motion for a new trial ‘only to determine whether there has been a significant error of law or other abuse of discretion.’ ” Commonwealth v. Bonnett, 482 Mass. 838, 843-844 (2019), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We discern no error or abuse of discretion on the part of either judge.

To begin with, the defendant has not pointed to any statute or case that requires a judge to inform a defendant pleading guilty to a violent crime or felony that the defendant will lose the right to possess a firearm. Nor are we aware of any such authority. To the contrary, our cases hold that a defendant need only be advised of the direct consequences of his plea. See Commonwealth v. Roberts, 472 Mass. 355, 362 (2015). The prohibition from owning or possessing a firearm was not a direct consequence of the defendant's guilty plea and, therefore, the judge was not obligated to advise the defendant as he claims.

In addition, we discern no abuse of discretion in the judges’ conclusions that the defendant tendered his plea knowingly and voluntarily. Even assuming that the defendant viewed his right to own and possess a firearm as a matter of paramount importance to him, he has not established that his decision to plead guilty was in any way unreasonable. To the contrary, the Commonwealth's evidence in both cases was strong and the defendant did not receive any jail time. As the judge who presided over the defendant's plea in the 2009 case noted,

“The defendant pleaded guilty to this charge and accepted a probationary term because he hoped to avoid the jail sentence the Commonwealth was understandably seeking in this case. Withdrawing his plea and going to trial would have only exposed the defendant to a likely guilty verdict and another request by the Commonwealth for his incarceration. No rational person in the defendant's position at the time would have done differently than he did in accepting the guilty finding for a year of probation and an apology letter.”

The same holds true with respect to the defendant's decision to plead guilty in the 2011 case.

Next, although an attorney's constitutional obligations to advise a client of the consequences of a guilty plea are broader than the judge's obligations to ensure that a plea is voluntary, we have recently reiterated that a failure to advise a defendant about the collateral consequences of a guilty plea on the right to possess firearms does not constitute ineffective assistance of counsel. See Commonwealth v. Erler, 106 Mass. App. Ct. 149, 154-155 (2025). Our decision in Erler forecloses the defendant's ineffective assistance claim. As previously noted, the loss of firearm licensure or any impact on Second Amendment rights resulting from a guilty plea is a collateral consequence, not a direct punishment. Thus, it cannot be said that either defense counsel provided ineffective assistance of counsel. We conclude therefore both judges properly denied the defendant's motions on this ground.⁷

The defendant's remaining arguments which are raised in connection with the 2011 case, require little discussion. Given the arguments presented, there was no need to conduct an evidentiary hearing. See Commonwealth v. Upton, 484 Mass. 155, 161 (2020) (evidentiary hearing only required where substantial issue is raised). Nor is the defendant entitled to any relief due to the fact that the judge did not issue written findings and rulings of law. While the better course would have been to do so, the defendant has not claimed that he has suffered any prejudice and we discern none. Lastly, we reject the defendant's claim that the witness intimidation statute is facially invalid under the First Amendment to the United States Constitution. See Commonwealth v. Bellard, 494 Mass. 446, 448 (2024). Passing on the question whether the defendant's challenge to the statute is properly before us, the underlying facts of the defendant's conviction demonstrate that he was not exercising his right to free speech. Rather, he was acting violently toward his mother when he threatened and intimidated her.

Conclusion. In the District Court case, docket no. 0942CR000521, the order denying the motion to reconsider and amend motion to withdraw guilty plea is affirmed. In the District Court case, docket no. 1142CR000058, the order denying the renewed motion to withdraw guilty plea is affirmed.

So ordered.

FOOTNOTES

2.   We take the facts from the judge's decision on the defendant's motion to reconsider and amend his motion to withdraw his guilty plea.

3.   These facts are taken from the police report dated January 18, 2011, and the witness's statement of the same date included in the defendant's record appendix.

4.   A postconviction motion to withdraw a guilty plea is treated as a motion for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000).

5.   The defendant appealed and different panels of this court affirmed the convictions. See Commonwealth v. Davoren, 98 Mass. App. Ct. 1119 (2020), S.C., 486 Mass. 1115 (2021). See also Commonwealth v. Davoren, 99 Mass. App. Ct. 1123 (2021), cert. denied, 142 S. Ct. 1681 (2022).

6.   The defendant filed notices of appeal from those orders but took no further action.

7.   The United States Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), and the Supreme Judicial Court's decision in Commonwealth v. Guardado, 491 Mass. 666, S.C., 493 Mass. 1 (2023), cert. denied, 493 U.S. 1 (2024), have no bearing on our analysis and holding in Erler. Accordingly, the defendant's motion to reconsider on this ground was properly denied.