Opinion
No. 12–P–175.
2013-02-19
COMMONWEALTH v. Sean J. BOYD.
By the Court (FECTEAU, HANLON & SULLIVAN JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motions for a new trial, filed in July, 2010, in connection with guilty pleas he entered in April and September, 2000, to two unrelated drug offenses (possession of a class D substance with intent to distribute, and possession of a class B substance with intent to distribute, respectively), before two different judges of the District Court. His motions contended that the plea judges had failed to inform him that by pleading guilty, he was waiving his right to a jury trial, and on appeal he contends that the motion judge's denial of the motions for a new trial constituted an abuse of discretion. We affirm.
A guilty plea is subject to the presumption of regularity when it is challenged long after recordings of the proceedings are no longer available, as is the case here. See Commonwealth v. Grannum, 457 Mass. 128, 132–133 (2010). See also Commonwealth v. Gonzales, 43 Mass.App.Ct. 926 (1997) (applying the presumption of regularity where defendant waited ten years before moving to withdraw guilty pleas). The defendant thus has the burden of producing credible and reliable evidence to rebut the presumption that the prior convictions were valid on the basis that his guilty pleas were not intelligent and voluntary. See Commonwealth v. Lopez, 426 Mass. 657, 662–666 (1998). To this end, the defendant submits that (1) he did not recall being informed of certain implications of his guilty plea, (2) the docket sheets did not indicate that he had been so informed, and (3) the court otherwise failed to properly execute the required documentation. First, the defendant sought to overcome the presumption of regularity by a self-serving affidavit, in which he merely stated that he had no recollection of the judge having informed him that, by pleading guilty, he waived his right to a jury trial—an allegation that was implicitly discredited by the motion judge. See Commonwealth v. Williams, 71 Mass.App.Ct. 348, 360 (2008), quoting from Commonwealth v. Lopez, supra at 663 (“It is ... an axiom of [Mass.R.Crim.P.] 30[b] practice ... that the judge ... may discredit untrustworthy affidavits ...”).
The defendant next contends that the docket sheets in the two cases rebut the presumption of regularity because the boxes indicating that a jury trial was “waive[d] ... after colloquy” were neither checked nor marked. As the form indicates, a colloquy is required before the judge may accept a defendant's waiver of a trial by jury, which is different in content than that necessary for the acceptance of a guilty plea. Importantly, the events in question were guilty pleas, not trials. The vacant boxes more logically were meant to record the defendant's election between jury and jury-waived trials in the event that the defendant's cases proceeded to trial. Given the defendant's guilty pleas, and that the boxes appropriate to those pleas were checked in both cases, we discern no significance in the fact that the judge left the jury-waiver box unchecked.
Indeed, before accepting a defendant's tender of a guilty plea, the hearing judge must conduct a thorough, oral inquiry of the defendant. Commonwealth v. Hubbard, 457 Mass. 24, 26 (2010). Here, in a section of the docket sheet marked “disposition method,” the box that corresponds to the actual events in question—namely, “guilty plea or admission to sufficient facts accepted after colloquy and [G.L. c.] 278, § 29D warning”—was checked on both docket sheets. Also, contained within the “green sheet,” the defendant's written tender of plea, is a signed acknowledgement by the defendant and his attorney that in pleading guilty, he was knowingly waiving his right to trial by judge or jury .
Inexplicably, he failed to append an affidavit from his plea counsel to his motions for a new trial. See Commonwealth v. Hoyle, 67 Mass.App.Ct. 10, 11 (2006).
The defendant lastly argues that since neither tender of plea form appears to have been signed by the judge accepting the plea, the forms are also significant as showing the lack of a written record of his waiver of jury trial. This contention similarly lacks merit. Certainly if a defendant is tried by a judge sitting without a jury, the waiver of the right to a jury trial must be in writing, but “[t]here is no requirement that, when accepting a defendant's tender of a guilty plea, a defendant's waiver of the right to a trial with or without a jury be in writing.” Commonwealth v. Hubbard, 457 Mass. at 26.
We discern no error or abuse of discretion in the decision of the motion judge concluding that the defendant had failed to overcome the presumption of regularity in either case.
Orders denying motions for new trial affirmed.