Commonwealth v. Edgar Belis.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-451

COMMONWEALTH

vs.

EDGAR BELIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a motor vehicle stop in May of 2013, the

defendant, Edgar Belis, was charged with several crimes,

including conspiracy to violate drug laws, possession with

intent to distribute a Class A substance (subsequent offense),

and a drug violation in a school zone or park. As part of a

plea agreement, the defendant pleaded guilty in the Boston

Municipal Court to conspiracy to violate drug laws and operating

a motor vehicle with a suspended license, subsequent offense.

The Commonwealth dismissed the possession with intent to

distribute charge (subsequent offense) and the school zone

charge (carrying a mandatory minimum sentence of two years). On
an agreed upon recommendation of the parties, the judge

sentenced him to concurrent terms of probation for two years.

Over eleven years later, in December of 2024, the defendant

moved to withdraw his guilty plea, claiming that it was the

result of ineffective assistance of counsel. After a

nonevidentiary hearing, the same judge who accepted the

defendant's guilty pleas in 2013 denied the motion.

On appeal, the defendant asserts that the judge abused his

discretion in denying his motion. We affirm.

Background. 1. Arrest, plea, and conviction. In his

motion to withdraw the plea, the defendant, noting the absence

of a transcript of the plea colloquy, stipulated to the facts

set forth in a police report. On May 28, 2013, four police

officers conducted a traffic stop near the intersection of

Franklin Park Road and Blue Hill Avenue in the Dorchester

section of Boston, after seeing a vehicle make an illegal turn.

The vehicle was occupied by the defendant, who was driving, and

a female passenger. Upon approaching the vehicle, one of the

officers asked for the defendant's license and the vehicle's

registration. A subsequent check of the defendant's license

revealed that it had been suspended. The officer then told the

defendant to get out of the vehicle and placed him under arrest.

Meanwhile, officers saw the passenger "looking back and

forth from the passenger['s] side to the driver['s] side [of the

2
vehicle] and patting her chest while she appeared to be

breathing rapidly." In preparation for towing, the officers

asked the passenger to get out of the vehicle so that they could

perform an "inventory search," to which she stated that she did

not feel well. After repeating their request, the officers saw

the passenger "physically shaking and clutching at a black

handbag."

As she got out of the vehicle, the passenger stated to the

officers that she was pregnant, and that she was "possibly going

to vomit." The officers then saw the passenger stick her

fingers in her mouth in an apparent attempt to induce vomiting.

While walking from the vehicle, the passenger began to "walk

with an unnatural gait, appearing to squeeze her thighs together

to walk while shuffling her feet." One of the officers checked

the black bag that the passenger had been clutching, and saw

multiple bags of a tan, powdery substance that the officers

believed to be heroin.1 The passenger was then placed under

arrest and read her Miranda rights. Another officer asked if

the passenger "had anything else on her," to which she shook her

head, looked down at her lap area, and stated, "money." As the

passenger moved, $6,200 in currency fell to the ground from

under her dress. The officers recovered the $6,200.

1 The substance later tested positive for heroin.

3
The defendant was transported to the police station,

whereupon he was charged with the offenses listed above. The

passenger was also transported to the police station after her

arrest, and, following a taped interview with a detective, was

released without charges. On the police report, the passenger

was identified as the vehicle's registered owner.

In November of 2013, the defendant hired trial counsel to

represent him in the present matter. In January of 2014, the

defendant pleaded guilty, and the judge sentenced him according

to an agreed upon recommendation. Through the plea agreement,

the defendant avoided a two-year mandatory minimum sentence on

the dismissed school zone charge and obtained a straight

probation term.

b. Subsequent conviction and motion to withdraw guilty

plea. In 2018, the defendant was arrested and pleaded guilty to

Federal narcotics distribution charges. Pursuant to Federal

sentencing guidelines, the defendant's prior convictions, which

included his conviction on the drug-related charge in the

present case, served as a basis for sentencing enhancements.

On December 10, 2024, the defendant moved to withdraw his

guilty plea in the present case, arguing that trial counsel

provided ineffective assistance of counsel in failing to pursue

a motion to suppress. Specifically, the defendant averred that

trial counsel did not advise him that he could file a motion to

4
suppress the evidence that was obtained as a result of the

officer's exit order of the passenger; and relatedly, that he

would not have accepted the plea agreement had he been cognizant

that a viable motion to suppress could have been filed.2 A

nonevidentiary hearing was held in February of 2025, where the

motion judge, who was also the plea judge, concluded that "[t]he

[defendant's trial] defense attorney clearly had problems . . .

[but] I don't think that impacted the plea. The [d]efendant got

an incredibly generous disposition . . . [s]o . . . I'm going to

deny the motion . . . for new trial." The defendant appeals.

2. Discussion. a. Standard of review. "A motion to

withdraw a guilty plea is treated as a motion for a new trial

under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501

(2001)." Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014),

citing Commonwealth v. Furr, 454 Mass. 101, 106 (2009). We

"examine the motion judge's conclusion only to determine whether

there has been a significant error of law or other abuse of

discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

2 The defendant's motion to withdraw his guilty plea was
accompanied by affidavits from the defendant, his counsel in the
Federal case, and the defendant's appellate counsel. The
defendant's counsel in the Federal case averred that, while
investigating the defendant's prior convictions, he discovered
that the defendant's trial counsel had been convicted of tax
evasion and was subsequently disbarred. The defendant's
appellate counsel further averred that that he reached out to
the defendant's trial counsel to discuss his representation of
the defendant but received no response.

5
Additionally, we extend "substantial deference" to the rulings

of a motion judge who, as here, served as the plea judge in the

same case. Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016).

b. Ineffective assistance of counsel. Where a motion to

withdraw a guilty plea is predicated on counsel's ineffective

assistance, the defendant must show that (1) the "behavior of

counsel [fell] measurably below that which might be expected

from an ordinary fallible lawyer," and (2) "counsel's poor

performance 'likely deprived the defendant of an otherwise

available, substantial ground of defence.'" Commonwealth v.

Millien, 474 Mass. 417, 430 (2016), quoting Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974).

On the basis of the police report, the defendant claimed in

his motion that the officers were without justification to

impound the vehicle -- thereby making the inventory search, and

its attendant exit order, improper -- where the vehicle's

registered owner, the passenger, was present and capable of

driving the vehicle away. See Commonwealth v. Torres-Pagan, 484

Mass. 34, 38 (2020) ("an exit order is justified during a

traffic stop where . . . police are conducting a search of the

vehicle on other grounds"). The defendant argues that had trial

counsel challenged the propriety of the impoundment in a motion

to suppress, the evidence seized as a result of the order would

6
have been excluded and this ultimately would have led to a

dismissal of the drug-related charges.

Here, the defendant has not shown any error by counsel, let

alone prejudice. Because the defendant failed to demonstrate

that a motion to suppress would have been successful, he failed

in establishing that trial counsel erred and likely deprived him

of a "substantial ground of defence." Saferian, 366 Mass. at

96. See Commonwealth v. Comita, 441 Mass. 86, 94 (2004) (in

context of motion for new trial, "it is appropriate to require

the defendant to establish that the Commonwealth could . . . not

have met its burden on a timely filed motion to suppress").

The defendant's motion is premised on the false assumption

that the officers were aware that the passenger was the

registered owner of the vehicle when they ordered her to exit,

and thus, a "reasonable alternative" to impounding the vehicle

existed, i.e., allowing the passenger to drive the vehicle away.

See Commonwealth v. Bienvenu, 63 Mass. App. Ct. 632, 634-635

(concluding that impoundment was justified where driver was

arrested and passenger had suspended license). Specifically,

the defendant assumes, without any basis in the record, that

because the officers asked the defendant for his license and the

vehicle's registration, they also necessarily knew that the

passenger was the same person listed on the vehicle's

registration.

7
First, there is no evidence demonstrating that, when the

officers ordered the passenger to exit the vehicle, they were

aware that she was in fact the registered owner. Nor is there

any evidence that the passenger represented herself as the

vehicle's registered owner, or that she had a valid license at

the time of the stop. Furthermore, while the police report

noted the passenger as the vehicle's registered owner, this fact

alone does not lead to the conclusion that the officers

possessed that knowledge at the time of the exit order. Rather,

because the report was written subsequent to the events detailed

therein, it is reasonable to infer that the passenger's

ownership of the vehicle was determined after the stop and

search were conducted. Indeed, the police report states that

the passenger's name was "later identified," not determined at

the time of the stop and the search.

Additionally, given the state of the law at the time of the

stop, the officers were under no affirmative obligation in 2013

to seek alternatives to impoundment in these circumstances. See

Commonwealth v. Eddington, 459 Mass. 102, 109 n.12 (2011) (no

per se rule that officer's failure to offer opportunity to make

reasonable alternative arrangements for vehicle invalidates

impoundment). Contrast Commonwealth v. Goncalves-Mendez, 484

Mass. 80, 85 (2020) ("where officers are aware that a passenger

lawfully could assume custody of a vehicle, it is improper to

8
impound the vehicle without first offering this option to the

driver.").

In sum, we discern no error of law and conclude that the

judge acted within his discretion in denying the defendant's

motion to withdraw his guilty plea.3

Order denying motion for new
trial affirmed.

By the Court (Meade,
Hodgens & Allen, JJ.4),

Clerk

Entered: May 14, 2026.

3 The defendant does not challenge the motion judge's
decision to rule on the defendant's motion without first holding
an evidentiary hearing. In any event, we conclude that the
judge did not abuse his discretion in denying the defendant's
motion without an evidentiary hearing. See Commonwealth v.
Smith, 90 Mass. App. Ct. 261, 264 (2016), quoting Commonwealth
v. Stewart, 383 Mass. 253, 257-258 (1981) ("In determining
whether a 'substantial issue' meriting an evidentiary hearing
. . . has been raised, we look not only at the seriousness of
the issue asserted, but also to the adequacy of the defendant's
showing").

4 The panelists are listed in order of seniority.

9