Opinion
14-P-525
03-18-2015
COMMONWEALTH v. LUIS DELACRUZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury found the defendant, Luis Delacruz, guilty of trafficking in more than 200 grams of cocaine, under G. L. c. 94C, § 32E(b)(4). This court affirmed his conviction in Commonwealth v. Delacruz, 83 Mass. App. Ct. 1135 (2013). Subsequently, the defendant moved for a new trial on the basis of ineffective assistance of counsel. On appeal, the defendant contends that the motion judge abused his discretion by denying his motion without an evidentiary hearing. We affirm.
Also known as Neftali Santos-Filomeno.
The defendant's motion for a new trial claims that trial counsel's failure to advise him of the immigration consequences of conviction at trial materially prejudiced his decision to reject the Commonwealth's plea agreement. This claim rested solely on the defendant's own affidavit. The motion judge, who was also the trial judge, found that the defendant's affidavit was not credible, particularly in light of the judge's reasonable interpretation of ambiguities in the affidavit establishing the defendant understood the immigration consequences of pleading guilty.
A motion for a new trial is directed to the sound discretion of the motion judge, who is required to hold an evidentiary hearing only if the defendant raises a substantial issue. See Commonwealth v. Freeman, 442 Mass. 779, 792 n.14 (2004). "Particular deference is to be paid to the rulings of a motion judge who served as the trial judge in the same case." Commonwealth v. Scott, 467 Mass. 336, 344 (2014). We review an order denying a motion for a new trial "for any abuse of discretion." Commonwealth v. Candelario, 446 Mass. 847, 858 (2006).
We see no cause to disturb the judge's decision to resolve this ineffective assistance claim without an evidentiary hearing. See Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 50 (1997) (properly denied motion without evidentiary hearing when judge exercised his discretion to repudiate defendant's "factual assertions as unworthy of belief"). The judge acted well within his discretion, under Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001), when he made a credibility finding on the face of the defendant's affidavit. See Commonwealth v. Buckman, 461 Mass. 24, 43 (2011) ("A judge is not required to credit assertions in affidavits submitted in support of a motion for a new trial"). The judge properly rejected the representation in the defendant's affidavit that he understood the immigration consequences of pleading guilty, but did not understand that such consequences would extend to a guilty verdict at trial, a contention the judge understandably considered incredible. See Commonwealth v. Grant, 426 Mass. 667, 673 (1998) (recognizing judge's "right to reject as not credible the defendant's self-serving, conclusory affidavit"). Indeed he does not even appear to be arguing that he did not understand that he would have been deported regardless of whether he was convicted or pleaded guilty.
The defendant points to no substantial evidence or additional testimony he would have introduced at an evidentiary hearing to supplement the affidavits reviewed by the judge that would have affected the judge's determination on the question of counsel's ineffectiveness. See Commonwealth v. DeVincent, 421 Mass. 64, 68-69 (1995). Thus, there was no abuse of discretion in denying the defendant's motion without a hearing.
Conclusion. For the reasons articulated above, we affirm the judge's denial of the defendant's motion for a new trial without an evidentiary hearing.
Order denying motion for new trial affirmed.
By the Court (Kafker, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 18, 2015.