Commonwealth v. Shilo M. Hearn.

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

21-P-1101

COMMONWEALTH

vs.

SHILO M. HEARN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In late 2018 and early 2019, the defendant, Shilo M. Hearn,

was charged in the District Court for two separate incidents

involving her live-in boyfriend. Specifically, on December 3,

2018, the defendant was charged with assault and battery on a

family or household member and assault and battery by means of a

dangerous weapon (the 2018 case). On January 7, 2019, the

defendant was charged with assault and battery on a family or

household member, assault and battery by means of a dangerous

weapon, disturbing the peace, and disorderly conduct (the 2019

case). On February 12, 2019, the defendant pleaded guilty in

the District Court on both cases.1 In October 2020, the

defendant filed a motion to withdraw her guilty plea. On

1 The disturbing the peace and disorderly conduct counts were
dismissed at the Commonwealth's request at the plea hearing.
November 18, 2020, the motion judge, who also presided at the

2019 plea hearing, denied the motion without a hearing. This

appeal ensued. We affirm.

Background. In brief, the 2018 case involved an argument

between the defendant and her boyfriend wherein the defendant

"picked up a kitchen knife and began swinging the knife at" her

boyfriend. As a struggle ensued, the defendant grabbed her

boyfriend by his tank top "and pulled, stretching it out. He

was cut by the knife on the right side of his chest near his

shoulder, as well as on the hand and he was grabbed by [the

defendant]." As for the 2019 case, the defendant and her

boyfriend were again involved in an argument during which the

defendant "grabbed a wine bottle and struck [the boyfriend] in

the head with it."2

Following the 2019 incident, a judge incarcerated the

defendant for violating her pretrial conditions of release.3 On

February 12, 2019, the boyfriend did not appear for the

scheduled trial. The judge issued a warrant for the boyfriend's

arrest, but later recalled the warrant because local police

2 The defendant was charged with both assault and battery on a
family or household member and assault and battery by means of a
dangerous weapon for each incident. As the defendant
acknowledges, these charges are not duplicative where each
charge contains an element that the other does not. See
Commonwealth v. Wolinski, 431 Mass. 228, 238-239 (2000).
3 The judge who incarcerated the defendant for violating the

terms of release was not the plea or motion judge.

2
officers could not locate or serve him because of bad weather

conditions and other pressing matters. That same day, the

parties filed an unagreed upon plea recommendation to jointly

resolve the 2018 and 2019 cases. The defendant requested a

continuance without a finding as to all counts, while the

Commonwealth recommended convictions with a sentence of six

months of incarceration in the house of correction, with thirty-

six days to serve and the balance suspended for one year on all

charges (except the disorderly conduct and disturbing the peace

counts4). The judge rejected both recommendations, and instead

offered to continue the two felony counts of assault and battery

by means of a dangerous weapon without a finding and impose

convictions on the two counts of assault and battery on a family

or household member. Specifically, the judge said that he would

not continue all counts without a finding in light of the

defendant's prior criminal record and the serious nature of the

charges. For the convictions, he offered to impose a split

sentence of one year of incarceration in the house of

correction, with thirty-six days to serve and the balance

suspended for twelve months. Insofar as the defendant had

already served thirty-six days for the violation of her terms of

release, the defendant would be released from incarceration

4 See note 1, supra.

3
forthwith if she accepted the plea terms. Following a full

colloquy, including an explanation as to the consequences of any

violation of probation or terms of the plea, the defendant

accepted the terms offered by the judge.

Discussion. "A motion to withdraw a guilty plea is treated

as a motion for a new trial pursuant to Mass. R. Crim. P. 30

(b)." Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015),

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

Motions for a new trial are committed to the sound discretion of

the judge, Commonwealth v. Moore, 408 Mass. 117, 125 (1990), and

"are granted only in extraordinary circumstances." Commonwealth

v. Comita, 441 Mass. 86, 93 (2004). "Reversal for abuse of

discretion is particularly rare where the judge acting on the

motion was also the trial judge." Commonwealth v. Schand, 420

Mass. 783, 787 (1995). See Commonwealth v. Williams, 71 Mass.

App. Ct. 348, 354 (2008) ("as the motion judge was also the plea

judge, we accord substantial deference to his decision to deny

the motion"). "A judge may make the ruling based solely on the

affidavits and must hold an evidentiary hearing only if the

affidavits or the motion itself raises a 'substantial issue'

that is supported by a 'substantial evidentiary showing.'"

Commonwealth v. Scott, 467 Mass. 336, 344 (2014), quoting

Commonwealth v. Stewart, 383 Mass. 253, 260 (1981).

4
Here, the defendant contends that her plea was not knowing,

voluntary, or intelligent because (1) she did not know or

understand the elements of the offenses to which she pleaded

guilty, i.e., the counts of assault and battery on a family or

household member; and (2) she was unaware of the maximum

sentence for the disposition at issue or for each of the charges

individually. In her affidavit in support of the motion to

withdraw guilty plea, the defendant averred that (1) she thought

that she "was going to get, all of [her] charges continued

without a finding"; (2) she did not understand that the guilty

pleas would stay on her record forever and that she would "get a

longer sentence for any charges in the future"; and (3) in

speaking with her plea attorney, she did "not remember

discussing the maximum sentence for each of the charges against

[her] . . . or the possible consequences if [she] was found in

violation of probation."5 Her claims are unavailing.

Whether a plea is intelligently and voluntarily made is

confirmed in the ordinary course by the plea judge during the

required colloquy. See Commonwealth v. Correa, 43 Mass. App.

Ct. 714, 716-717 (1997). Here, the lengthy and detailed plea

5 The defendant's plea counsel did not file an affidavit in
support of the motion to withdraw guilty plea. According to the
defendant's appellate counsel's affidavit, plea counsel told her
that "he had fully advised [the defendant] but refused to sign
an affidavit."

5
colloquy shows that the plea judge reviewed the waiver of

rights, the charges, and the terms of the plea deal with the

defendant. "A plea is made intelligently if (1) the judge

explain[s] to the defendant the elements of the crime; (2)

counsel represent[s] that [he] has explained to the defendant

the elements he admits by his plea; or (3) the defendant admits

to facts recited during the colloquy which constitute the

unexplained elements" (quotations and citation omitted).

Commonwealth v. Wentworth, 482 Mass. 664, 679 (2019).

Here, contrary to the defendant's claim, the record reveals

that the defendant admitted to facts recited during the colloquy

which constituted all the elements of the offense of assault and

battery on a household or family member.6 As to the 2018 case,

the prosecutor's recitation of facts stated that the defendant

grabbed the boyfriend by his tank top, cut him on the right side

of his chest with a knife, and grabbed him. The recitation of

facts further stated that the boyfriend and the defendant had a

"dating relationship" and that the assault and battery was made

upon a "family household member." These facts constituted the

elements of assault and battery on a household or family member,

see G. L. c. 265, § 13M, and the defendant agreed that the

Commonwealth's summary of events was "essentially what

6 See note 2, supra.

6
happened." As to the 2019 case, the prosecutor's recitation of

facts stated that the defendant and her boyfriend were "in a

dating relationship" and that she "grabbed a wine bottle and

struck him in the head with it." Here again, these facts

constituted the elements of assault and battery on a family or

household member, and the defendant agreed that the

Commonwealth's summary of events was "essentially what

happened." See generally Commonwealth v. Sherman, 451 Mass.

332, 335-338 (2008).

For similar reasons, we reject the defendant's contention

that she was unaware of the maximum sentence for the disposition

at issue. The judge advised the defendant that if she accepted

the plea terms, she would receive a guilty finding on the two

counts of assault and battery on a family or household member

and receive a sentence of "[twelve] months in the house of

correction, [thirty-six] days to serve, that would be deemed to

have [been served], the balance suspended for [twelve] months."

He further advised, with respect to the "continuance without a

finding felonies" on the two assault and battery by means of a

dangerous weapon counts, any violation of the terms of the

continuance could result in her being "sentenced up to two and a

half years out of this Court." The judge further stated that,

in the event of any violations of the terms of probation with

respect to the assault and battery on a household or family

7
member convictions, "those [sentences] may be imposed and you

could be served the balance of those as [twelve] months."7 When

asked if she understood, the defendant told the judge, "I do."

In short, the judge did explain the maximum sentences connected

to the disposition at issue, and his explanations conformed with

Mass. R. Crim. P. 12 (c) (3), as amended, 489 Mass. 1501 (2022),

as well as our case law. See Sherman, 451 Mass. at 341-342.8

Accordingly, the judge did not abuse his discretion in denying

the defendant's motion to withdraw her guilty plea.

Order denying motion to
withdraw guilty plea
affirmed.

By the Court (Neyman, Grant &
Hershfang, JJ.9),

Clerk

Entered: July 7, 2023.

7 The judge also advised the defendant that "if you comply with
these terms and there's no other issues at the end of the term
of your probation, you'll be terminated and discharged from that
probation."
8 We note that the defendant completed her probation without any

violations and thus was not exposed to any of the maximum
sentences on any of the charges in the present case.
9 The panelists are listed in order of seniority.

8