Opinion
No. 12–P–575.
2013-04-12
COMMONWEALTH v. Antonio O. DIAS, Jr.
By the Court (WOLOHOJIAN, HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion to vacate his guilty pleas on six separate complaints (dating from 1994 and 1995) charging various drug offenses and other offenses including receiving a stolen motor vehicle, and for new trial. As part of an agreement with the prosecution, the defendant pleaded guilty to some of the charges, some charges were filed, and the sentences (one year in a house of correction on all but one charge, two years on the remaining charge) on all charges were to run concurrently. The pleas were entered on November 8, 1996.
At some point after he finished serving his sentence, the defendant was deported to Portugal. In 1999, he filed his first motion to withdraw his pleas and for new trial. Although the defendant has not provided us with a sufficient record to determine the basis for that motion, it appears that he argued that his attorney had misled him with respect to the possible immigration consequences of his plea. That motion was denied.
In 2011, more than ten years later, apparently prompted by the United States Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356 (2010), the defendant again moved to withdraw his pleas and for new trial. A primary basis of this motion was the defendant's contention that his plea counsel's performance with respect to immigration warnings fell short of what was required under Padilla. The denial of that new trial motion is now before us.
On appeal, the defendant no longer presses any argument concerning his counsel's performance with respect to immigration warnings. Instead, he argues that the judge erred in rejecting his argument that he pleaded guilty only because he had been held in detention for ten days beforehand and had been given little information about his cases. He contends that he tendered his plea because he was scared and “could not take not knowing what was happening anymore.” “Our review of the grant or denial of a motion for new trial is limited to whether the judge's decision constitutes an abuse of discretion or contains any other error of law.” Commonwealth v. Lane, 462 Mass. 591, 597 (2012). “A judge is not required to credit assertions in affidavits submitted in support of a motion for a new trial, but may evaluate such affidavits in light of factors pertinent to credibility, including bias, self-interest, and delay.” Commonwealth v. Buckman, 461 Mass. 24, 43 (2011). Here, the record gave every reason to discredit the defendant's explanation as to why he entered into the pleas. Not least is the fact that he waited fifteen years—during which he finished serving his sentences—before raising the argument that he did not know what was happening. It would be reasonable to presume that this claim, if true, would have been raised long before.
Finally, with respect to his argument that the District Court lacked jurisdiction over the motor vehicle charge because the crime was committed while the defendant was a juvenile, we note that the defendant failed to submit anything to indicate that the requirements of G.L. c. 119, § 72A, as appearing in St.1975, c. 840, § 2, had not been satisfied. Absent such a showing, the presumption of regularity defeats his claim. See Commonwealth v. Grannum, 457 Mass. 128, 132–133 (2010).
Order denying motion to withdraw guilty pleas or for new trial affirmed.