Commonwealth v. Lars E. Prescott.

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

23-P-281

COMMONWEALTH

vs.

LARS E. PRESCOTT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order of a District Court

judge denying his motion for a new trial that sought to vacate a

guilty plea entered in 1986. We affirm.

Background. On November 8, 1985, a complaint charged the

defendant with larceny of property over $100 and malicious

destruction of property over $100. Three months later, on

February 25, 1986, the defendant admitted to sufficient facts to

warrant a finding of guilty, and the judge sentenced him to one

year of probation, imposed a fine, and ordered restitution. The

defendant was ultimately discharged from probation.

In 2021, the defendant filed a motion for a new trial along

with his own affidavit detailing the events surrounding his
convictions. He claimed that (1) his lawyer had a conflict of

interest by simultaneously representing the defendant and two

codefendants, (2) his lawyer and the judge erred by failing to

inform him that a conviction would prevent him from obtaining a

license to carry a firearm, and (3) the judge should have

informed him that an admission to sufficient facts would result

in a conviction.

At a hearing on the motion, the defendant testified before

a second judge who was not the plea judge, and he presented no

additional evidence. According to his testimony, the defendant,

who was nineteen or twenty years old in 1985, was satisfied with

the disposition of the case and did not appeal at that time. He

understood that he was pleading guilty, but the conviction would

be "off [his] record" following probation. His lawyer never

explained that the proceedings would result in a felony

conviction and never explained that he would be forfeiting

rights under the Second Amendment. He also did not recall the

judge ever explaining the forfeiture of Second Amendment rights.

Around 2014, the Northborough Police Department issued the

defendant a license to carry a firearm. Six years later, the

police chief denied a renewal of that license and confiscated

his firearms due to his convictions. In its opposition, the

Commonwealth argued that the defendant failed to produce

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evidence that overcame the presumption of a valid plea, and that

the judge should not credit the defendant's "self-serving"

assertions. The judge denied the motion in an endorsement order

and "concur[red] with the Commonwealth's position."

On appeal, the defendant repeats his conflict of interest

claim as well as his claim that counsel and the plea judge

failed to advise him that a conviction would preclude him from

obtaining a license to carry a firearm. He adds a new claim

that the plea judge failed to give him the opportunity to

withdraw a defendant-capped plea.

Discussion. "A postsentence motion to withdraw a plea is

treated as a motion for a new trial." Commonwealth v. Conaghan,

433 Mass. 105, 106 (2000). "Pursuant to Mass. R. Crim. P. 30

(b), as appearing in 435 Mass. 1501 (2001), a judge 'may grant a

new trial at any time if it appears that justice may not have

been done.'" Commonwealth v. Ferreira, 481 Mass. 641, 648

(2019). "We review the denial of a motion for a new trial 'only

to determine whether there has been a significant error of law

or other abuse of discretion.'" Commonwealth v. Bonnett, 482

Mass. 838, 843-844 (2019), quoting Commonwealth v. Grace, 397

Mass. 303, 307 (1986). See L.L. v. Commonwealth, 470 Mass. 169,

185 n.27 (2014).

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1. Conflict of interest. "An element of the fundamental

right to counsel under art. 12 of the Massachusetts Declaration

of Rights is the defendant's right to the full and undivided

loyalty of his attorney." Commonwealth v. Shraiar, 397 Mass.

16, 20 (1986). "A defendant is entitled to the untrammeled and

unimpaired assistance of counsel free from any conflict of

interest." Id. The defendant bears the burden of presenting

"demonstrative proof detailing both the existence and the

precise character of this alleged conflict of interest; we will

not infer a conflict based on mere conjecture or speculation."

Shraiar, supra.

We discern no error in the judge's rejection of this claim

because the record shows the defendant did not meet his burden

of showing an actual conflict of interest. See Commonwealth v.

Stote, 456 Mass. 213, 218 (2010). In support of his motion, the

defendant testified, without elaboration, that one lawyer

represented all the co-defendants during the plea hearing. Even

if the judge credited this testimony, the defendant did not meet

his burden. Courts do not "automatically infer a conflict of

interest from dual or joint representation alone." Commonwealth

v. Balliro, 437 Mass. 163, 168 (2002). In the absence of "a

conflict of interest which interferes with the proper

presentation of the defense of one of the codefendants, the mere

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fact that both are represented by the same attorney is not

grounds for [relief]." Commonwealth v. LaFleur, 1 Mass. App.

Ct. 327, 331 (1973), quoting Lugo v. United States, 350 F.2d

858, 859 (9th Cir. 1965).

In his brief, the defendant faults the Commonwealth for

failing to offer evidence "contradicting" his claim of a

conflict of interest. The burden of proof on the motion,

however, rested with the defendant and not the Commonwealth.

Stote, 456 Mass. at 218. We also note that the defendant did

not produce affidavits from the codefendants or the lawyer, a

transcript of the plea hearing, docket entries from the

codefendants' cases, or a police report. See Commonwealth v.

Lopez, 426 Mass. 657, 665-666 (1998). A motion for a new trial

cannot be "grounded on mere speculation." Commonwealth v.

Laguer, 410 Mass. 89, 94 (1991).

2. Advisory regarding license to carry. The defendant next

contends that his motion should have been allowed because

counsel rendered ineffective assistance and the plea judge erred

by failing to explain the consequences a conviction would have

on a license to carry a firearm. "Where a motion for a new

trial is based on ineffective assistance of counsel, the

defendant must show that the behavior of counsel fell 'below

that . . . [of] an ordinary fallible lawyer' and that such

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failing 'likely deprived the defendant of an otherwise

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

Miller, 101 Mass. App. Ct. 344, 348 (2022), quoting Commonwealth

v. Saferian, 366 Mass. 89, 96 (1974). A plea judge must be

satisfied that the defendant understands the direct consequences

of the plea, including "waiving the privilege against self-

incrimination, waiving the right to trial by jury, and waiving

the right to confront one's accusers." Commonwealth v. Minon,

102 Mass. App. Ct. 244, 247 (2023). Because the consequences

pertaining to the license to carry were collateral to the plea,

the motion judge properly rejected this claim as well.

A guilty plea is not necessarily vulnerable "because a

defendant has received inaccurate or incomplete advice from his

counsel concerning the penal consequences of the plea."

Commonwealth v. Indelicato, 40 Mass. App. Ct. 944, 945 (1996).

As in the Indelicato case where the plea had adverse

consequences on a license to carry a firearm, the alleged lapse

by counsel here involved a matter "entirely collateral to the

charges pending for the plea." Id. Advice concerning such

collateral consequences "has been considered outside the ambit

of the right to the effective assistance of counsel." Minon,

102 Mass. App. Ct. at 247. We disagree with the defendant's

contention that the constitutional right to bear arms as

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articulated in recent cases requires a different result. See,

e.g., New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597

U.S. 1, 10 (2022); McDonald v. Chicago, 561 U.S. 742, 791

(2010). Criminal convictions can impair many rights -- even

rights with a constitutional dimension. Indeed, "criminal

convictions can carry a wide variety of consequences other than

conviction and sentencing, including civil commitment, civil

forfeiture, the loss of the right to vote, disqualification from

public benefits, ineligibility to possess firearms, dishonorable

discharge from the Armed Forces, and loss of business or

professional licenses." Minon, 102 Mass. App. Ct. at 248,

quoting Padilla v. Kentucky, 559 U.S. 356, 376 (2010) (Alito,

J., concurring). Counsel was "not required to be omniscient,"

and if he failed to fully advise the defendant of the collateral

consequences of the plea, such a failing was not a "grave and

fundamental" error that fell below the standard of an ordinary

fallible lawyer. Indelicato, supra, quoting Commonwealth v.

Norman, 27 Mass. App. Ct. 82, 86 (1989).

Similarly, before accepting the plea in 1986, the judge had

no obligation to probe the defendant's understanding of his

constitutional right to bear arms. "The rule that a plea must

be intelligently made to be valid does not require that a plea

be vulnerable to later attack if the defendant did not correctly

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assess every relevant factor entering into his decision." Brady

v. United States, 397 U.S. 742, 757 (1970). Also, the decision

to plead guilty often includes "imponderable questions for which

there are no certain answers; judgments may be made that in the

light of later events seem improvident, although they were

perfectly sensible at the time." Id. at 756-757. Such is the

case here. In 1986, the defendant made a perfectly sensible

decision to bring his criminal case to an end, and he now

regrets the decision based upon collateral consequences that

only recently came to light. These circumstances do not evince

an error by the plea judge but instead demonstrate a legislative

judgment as to who should have a license to carry a firearm.

3. Opportunity to withdraw plea. Finally, for the first

time, the defendant claims that he was not given the opportunity

to withdraw his defendant-capped plea during the plea hearing.

This argument fails because he did not raise it below. "If a

defendant fails to raise a claim that is generally known and

available at the time of trial or direct appeal or in the first

motion for postconviction relief, the claim is waived." Rodwell

v. Commonwealth, 432 Mass. 1016, 1018 (2000), citing

Commonwealth v. Ambers, 397 Mass. 705, 707 n.2 (1986). Even if

not waived, the claim lacks any support in the record. When a

plea remains unchallenged for a lengthy period of time leaving

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no contemporaneous record, the defendant must "provide

sufficient credible and reliable factual evidence" in support of

the motion. Lopez, 426 Mass. at 663. He has not done so, and

we decline to speculate as to what might have happened during

the plea hearing.

Order denying motion for a
new trial affirmed.

By the Court (Meade,
Englander & Hodgens, JJ.1),

Clerk

Entered: September 11, 2024.

1 The panelists are listed in order of seniority.

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