464 Mass. 223 (2013)
This case is an appeal from the denial
of defendant’s motion to vacate plea. In
1995, the defendant, then fourteen years old, entered a plea of guilty to
assault and battery by means of a dangerous weapon and indecent assault and
battery on a child under the age of fourteen. The defendant and his mother were native Khmai
speakers. During the proceedings, the trial judge recognized that the defendant
would need an interpreter and the docket shows that interpreters were ordered
for certain court dates, although no entry on the docket indicates that
interpreters were actually present. In 2009, the defendant sought to vacate his
plea on the grounds that no interpreter had been present at his plea hearing
and as such, he was denied the assistance of his parent and effective
assistance from counsel. As evidence, he
submitted an affidavit from his mother, a 1996 report by the Department of
Youth Services, and a 1996 educational report discussing his educational
skills. The trial court judge denied his motion on the grounds that the court
has never required the documentation of the presence of an interpreter in the
court room. The defendant then moved for reconsideration introducing an
affidavit from the chief financial officer of the Committee for Public Counsel
Services (CPCS). The court of appeals affirmed.
The defendant contends that the Juvenile
Court improperly denied his motion for a new trial. When there is a lengthy
delay for a motion to vacate a plea and motion for new trial, the burden of
showing that the defendant did not understand or voluntarily enter a guilty
plea lies with the defendant. The defendant must provide sufficient credible
and reliable factual evidence to overcome the presumption that the judge
properly conducted his plea proceeding. Here, the defendant did not provide sufficient
evidence to rebut the presumption. Interpreters were ordered for the
defendant’s court dates. He was able to
talk to informed adults, including his mother and his attorney. His competency
was not an issue during the original plea proceedings. The defendant’s second
claim that he was denied effective assistance of counsel was also denied
because the defendant failed to provide sufficient evidence.
The
order denying a motion for new trial was affirmed.
Written 7/15/2013
