COMMONWEALTH v. HASKELL, FEBRUARY 19, 2010, APPEALS COURT
Plea
The defendant pled guilty in 1986 to operating under the influence of alcohol and was sentenced to one year of probation. Twenty years later he moved to withdraw his change of plea because, as he claimed in his affidavit, the plea judge did not provide a colloquy. In an affidavit his former attorney stated he could not recall whether a colloquy was given. Two other attorney’s submitted affidavits. They stated that they regularly practiced before the judge at the relevant time and that the judge accepted guilty pleas without conducting a complete colloquy. The Commonwealth filed an affidavit from the now retired plea judge. In the affidavit the judge stated that it was his practice at the time to provide the required colloquy before accepting a defendant’s change of plea.
The motion judge, after a non-evidentiary hearing, found that a colloquy had not been given but denied the motion to vacate because based on other extrinsic evidence and given the prolonged delay in challenging the plea there was not a substantial risk of a miscarriage of justice.
The Appeals Court affirmed on other grounds. The Court stated that the motion judge erred by viewing the plea judge’s affidavit as mere evidence upon which he could make a determination of credibility. The statement in the affidavit that it was his usual practice to administer the warnings to all defendants, constituted a “record” within the meaning of the statute. Therefore, the affidavit served to reconstruct the "record" of the plea and enjoyed the presumption of regularity unless rebutted. In this case, the defendant did not submit a single transcript or recording of the plea judge conducting a plea colloquy, much less several contemporaneous transcripts that demonstrated a pattern of grossly inadequate colloquies as was provided in another case.
