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14-P-405 Appeals Court
COMMONWEALTH vs. ALEKSANDR TOKAREV.
No. 14-P-405.
Hampden. January 15, 2015. - August 10, 2015.
Present: Fecteau, Wolohojian, & Massing, JJ.
Practice, Criminal, Plea, Assistance of counsel.
Complaint received and sworn to in the Springfield Division
of the District Court Department on September 6, 2006.
A motion to vacate conviction, filed on November 12, 2013,
was heard by Robert A. Gordon, J.
Cynthia Cullen Payne, Assistant District Attorney, for the
Commonwealth.
Daniel P. Morrissey for the defendant.
WOLOHOJIAN, J. Federal immigration authorities have
informed the defendant that he is deportable based on his
admission seven years ago to sufficient facts to support a
charge of possession of a Class B substance. In order to avoid
deportation, the defendant moved to vacate his plea on the
ground that his lawyer failed to advise him of the immigration
2
consequences of his plea.1,2 During a nonevidentiary hearing on
the defendant's motion, the judge (who had also been the plea
judge) noticed that the defendant had not signed the portion of
the "green sheet" that applies when the court rejects a
defendant's proposed disposition.3,4 In addition, neither the
box next to the statement, "Defendant WITHDRAWS the tendered
plea or admission," nor the box next to the statement,
"Defendant ACCEPTS judge's disposition set forth above," had
been checked. The judge brought the uncompleted portions of the
green sheet to the parties' attention and solicited additional
briefing. In response, the defendant filed an amended motion --
unaccompanied by affidavits5 -- in which he argued that the plea
1
The defendant's plea resulted in a continuance without a
finding. But that disposition was revoked, and a conviction
entered, after the defendant violated the terms of his
probation.
2
The motion was supported by two affidavits: one from the
defendant and one from plea counsel.
3
Not only was that portion of the green sheet not signed by
the defendant or his counsel, the judge mistakenly signed on the
line reserved for counsel.
4
The Commonwealth had recommended that the defendant be
placed on one year of probation and remain drug free; the
defendant had proposed six months of probation.
5
The failure to submit affidavits when a material fact is
in dispute would have been itself sufficient basis upon which to
deny the motion. See Mass.R.Crim.P. 30(c)(3), as appearing in
435 Mass. 1501 (2001) ("moving parties shall file and serve
. . . affidavits where appropriate in support of their" motion
[emphasis added]).
3
was constitutionally deficient because the green sheet did not
reflect that he accepted the judge's disposition.6
In ruling on the amended motion, the judge found that he
was "unable to state that the Defendant made a decision to
accept or reject the exceeding of the Defendant's
recommendation. In addition to the defects in the 'plea form'
[green sheet], the Magistrate [on the docket sheet], failed to
mark or 'check' the box under 'Disposition Method' to indicate:
Guilty Plea or Admission to Sufficient Facts accepted after
Colloquy and [G. L. c. 278 § 29D] warning." On these bases, the
judge allowed the defendant's amended motion, without reaching
the defendant's original claim that counsel had failed to advise
him of the immigration consequences of his plea.
The transcript of the plea colloquy is no longer available,7
and neither party attempted to reconstruct the record of the
colloquy generally or in particular with respect to the question
6
The Commonwealth filed nothing further, relying on the
points and arguments made in its original opposition to the
defendant's motion.
7
Defense counsel represented to the judge below that he had
attempted to obtain a copy of the transcript, but that the
clerk's office had informed him that it had been destroyed as
part of the court's customary two and one-half year document
retention policy. "Rule 211(A)(4) of the Special Rules of the
District Courts provides that recordings of pleas (and other
types of proceedings) may be destroyed after two and one-half
years. This rule was necessitated by the difficulty of storing
vast amounts of paper or tapes. In our age of digital
recordings, the continuing need for the rule is less apparent."
Commonwealth v. Cortez, 86 Mass. App. Ct. 789, 790 n.5 (2014).
4
of the defendant's acceptance of the disposition. Although not
requested by either party to make a finding concerning his usual
practice, the judge sua sponte stated he uniformly reviews the
green sheet with every defendant who tenders a plea, and always
asks whether the defendant has read and understood it.8 See
Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928, 930 (1999)
(motion judge was plea judge and noted his own standard practice
at time of plea); Commonwealth v. Diaz, 75 Mass. App. Ct. 347,
351 (2009) ("In the circumstances of a record depleted by the
passage of time, the plea judge's statement of customary
practice can be necessary and probative").
Where, as here, a defendant seeks to withdraw his plea
pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501
(2001), after waiting many years, and the record of the plea is
unavailable through no fault of the Commonwealth, the defendant
bears the burden of proof. Commonwealth v. Grannum, 457 Mass.
128, 133 (2010).9 This requires the defendant to present
8
The judge also stated that his uniform practice is to give
the immigration warnings required by G. L. c. 278, § 29D, and
the defendant does not challenge the immigration warnings given
by the judge.
9
The burden is different in cases where the motion to
withdraw the plea is based on G. L. c. 278, § 29D, which
requires that the judge deliver in exact language certain
immigration warnings. Grannum, 457 Mass. at 133-134. But this
is not such a case because the defendant does not challenge the
judge's handling of the plea. See note 8, supra. Instead, the
5
"sufficient credible and reliable evidence to rebut a
presumption that the prior conviction was valid." Commonwealth
v. Lopez, 426 Mass. 657, 664-665 (1998).
The defendant did not meet that burden here as a matter of
law. Even after the judge sua sponte pointed out the
irregularities on the green sheet and requested additional
submissions from the parties, the defendant came forward with no
evidence to show that he had not accepted the judge's
disposition. Tellingly, neither the defendant nor his attorney
claim or argue that the defendant did not accept the
disposition. It certainly would have been a simple matter for
the defendant to submit an affidavit to that effect if such an
assertion honestly could have been made. Moreover, the
favorable disposition itself, and the fact that the defendant
did not raise any objection to the validity of his plea or the
terms of the disposition during subsequent probation revocation
proceedings, are strong indications that the defendant accepted
the disposition.
The fact that neither the defendant nor his lawyer signed
the green sheet to show that he accepted the disposition is
neither dispositive nor sufficient to overcome the presumption
of regularity. As an initial matter, the signature (although
defendant's original motion rested on his contention that his
counsel's performance had fallen short.
6
desirable) was not required. Although Mass.R.Crim.P.
12(c)(2)(B), as appearing in 442 Mass. 1511 (2004), requires
that a District Court judge "inform the defendant that the court
will not impose a disposition that exceeds the terms of the
defendant's request without first giving the defendant the right
to withdraw the plea," there is no rule requiring that the green
sheet be signed to so note. And, even if a signature were
required, "[w]e will not assume that the defendant's plea was
involuntary and unknowing and say as a matter of law that
justice was not done simply because the record reflects
noncompliance with rule 12." Commonwealth v. Rodriguez, 52
Mass. App. Ct. 572, 580 (2001). Moreover, as the judge himself
correctly noted, not much can be reasonably inferred from the
absence of a signature and check marks.10 Taken alone, as the
judge found, the evidence was not enough to permit the judge to
determine whether the defendant had rejected or accepted the
disposition. Evidentiary equipoise in which a judge cannot tell
whether one thing or its opposite has occurred is not sufficient
to overcome the presumption of regularity.
For these reasons, we vacate the order allowing the
defendant's motion to withdraw his plea to the extent it was
based on irregularities in the green sheet and docket sheet.
10
The same is true, in these circumstances, with respect to
the fact that the clerk-magistrate did not check one of the
boxes on the docket sheet.
7
However, because the judge did not reach the defendant's
ineffective assistance of counsel claim, the matter is remanded
for that portion of the motion to be considered.
So ordered.