COMMONWEALTH v. XEDRIK X., a Juvenile.

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

24-P-890

COMMONWEALTH

vs.

XEDRIK X., a juvenile.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The juvenile appeals from the orders denying his motions to

vacate his 2004 delinquency pleas to charges of larceny of

property valued at $250 or more, G. L. c. 266, § 30, and

tampering with a fire alarm, G. L. c. 268, § 32. The juvenile

argues that his plea counsel was ineffective and that a Juvenile

Court judge abused her discretion in declining to grant an

evidentiary hearing on his motions. We affirm.

Background. On October 4, 2004, a complaint issued

charging the juvenile, then fifteen years old, with larceny of

property valued at $250 or more. Ten days later, another

complaint issued charging the juvenile with tampering with a

fire alarm. At arraignment in both cases, an attorney (plea
counsel) was appointed to represent the juvenile. On November

15, 2004, the juvenile tendered pleas in both cases. The

dockets reflect that a Juvenile Court judge (plea judge)

conducted a colloquy with the juvenile, though a recording of

that colloquy is no longer available. The plea judge accepted

the pleas and placed the juvenile on probation for one year.

About eleven months later, warrants issued in both cases

alleging that the juvenile was in violation of probation. A

different attorney (probation counsel) was appointed to

represent the juvenile. The juvenile was found in violation of

probation, and his probation was extended and later terminated.

About eighteen years after his pleas, and represented by

new counsel (motion counsel), the juvenile moved pursuant to

Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001),

to vacate his plea on the charge of tampering with a fire alarm.

In support of that motion, the juvenile submitted his own

affidavit, averring that after plea counsel was appointed, "[w]e

did not discuss the rights that I would be giving up in order to

plead out, nor did we discuss any alternatives." The juvenile

did not submit any affidavit of plea counsel, but did submit an

affidavit of motion counsel describing his unsuccessful attempts

to reach plea counsel by telephone and by letter. Because the

plea judge had retired, a different Juvenile Court judge (motion

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judge) considered the motion and denied it after a

nonevidentiary hearing.

Over one year later, in May 2024, the juvenile filed a

similar motion to vacate his plea on the charge of larceny of

property valued at $250 or more.1 The juvenile supported that

motion with his own affidavit averring that "[n]one of the

missing items were ever found in my possession," and "[t]here

were other children staying at the house when the items were

reported missing." The juvenile's affidavit referred by name to

probation counsel as having "advised me to plead delinquent to

the charges," in contrast to the docket that shows that it was

plea counsel who represented the juvenile at the plea. In

support of that motion, the juvenile again submitted no

affidavit of plea counsel, but did submit an affidavit of motion

counsel describing her contacts with probation counsel, who had

neither any specific memory of the case nor any file. The

motion judge denied that motion without a hearing.

The juvenile timely appealed from the orders denying his

motions. The appeals were consolidated in this court.

1 The juvenile was represented by motion counsel and another
attorney in the same law firm. For the sake of simplicity we
refer to each of them as motion counsel.

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Discussion. A motion to withdraw a guilty plea, which is

treated as a motion for a new trial pursuant to Mass.

R. Crim. P. 30 (b), may be allowed if "it appears that justice

may not have been done." Commonwealth v. Scott, 467 Mass. 336,

344 (2014). Because the motion judge was not the plea judge and

based her ruling on affidavits, we are in as good a position as

she to make that determination. See Commonwealth v. Perkins,

450 Mass. 834, 845 (2008). "[W]e review the denial of a motion

for a new trial for 'a significant error of law or other abuse

of discretion'" (citation omitted). Commonwealth v. Duart, 477

Mass. 630, 634 (2017), cert. denied, 584 U.S. 938 (2018).

1. Ineffective assistance of counsel. The juvenile

asserts that plea counsel did not investigate any potential

defenses and did not ensure that the pleas were knowing,

voluntary, and intelligent, and argues that as a result plea

counsel's representation was ineffective and prejudiced the

juvenile. Thus, the juvenile contends, the motion judge abused

her discretion in denying his motions to vacate the pleas.

Because the juvenile moved to vacate his pleas eighteen and

nineteen years after he tendered them, no audio recording or

transcript of the plea proceedings is available. See

Commonwealth v. Lopez, 426 Mass. 657, 661 (1998). In those

circumstances, "[t]he presumption of regularity and the policy

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of finality . . . come into play . . . to place on the

[juvenile] the requirement of showing some basis that adequately

supports a negation of his convictions." Commonwealth v. Hoyle,

67 Mass. App. Ct. 10, 14 (2006), quoting Commonwealth v. Grant,

426 Mass. 667, 671 (1998).

To establish that he was entitled to a new trial, the

juvenile was required to show that plea counsel's performance

fell below the standard of an ordinary, fallible lawyer, and

that counsel's shortcomings deprived him "of an otherwise

available, substantial ground of defence." Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). As evidence of plea

counsel's ineffectiveness, the juvenile offered only his own

affidavits (RA 29, 61-62) and those of motion counsel. The

motion judge found that the juvenile "did not exhaust all

efforts to obtain a response from" plea counsel. Motion

counsel's affidavit describing unsuccessful attempts to contact

plea counsel did not excuse the absence of an affidavit from

plea counsel. See Commonwealth v. Miller, 101 Mass. App. Ct.

344, 353 (2022) ("An affidavit stating that trial counsel

'refused to support the motion' or 'would not cooperate with

successor counsel,' without more, is inherently vague and

susceptible to varied interpretations"). Contrast Commonwealth

v. Watt, 493 Mass. 322, 333 (2024) (affidavits from both

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prosecution and defense counsel corroborated juvenile's claim

that lead counsel was sleeping during trial).

Based on the docket, the motion judge noted that the plea

judge had given the juvenile the appropriate immigration

warnings; from that, the motion judge inferred that the plea

judge also had conducted an appropriate plea colloquy. Also

based on the docket, the motion judge noted that at the time of

his pleas the juvenile was being held in custody. The judge

found that "[i]t is not unusual for someone in custody to trade

their release from confinement for a global resolution on open

criminal cases, which the Court infers happened in this case."

Because the juvenile's pleas resulted in favorable sentences --

only one year of probation -- the record supports an inference

that they were entered with his voluntary and intelligent

agreement. See Commonwealth v. Furr, 454 Mass. 101, 112 (2009)

("generous" sentence recommendation resulting from youthful

offender's plea "strongly supports the conclusion that the

defendant chose voluntarily to plead").

In these circumstances, we conclude that the motion judge

did not abuse her discretion in "reject[ing] as not credible the

[juvenile's] self-serving, conclusory affidavit[s]." Grant, 426

Mass. at 673. See Furr, 454 Mass. at 109 (affirming denial of

motion to withdraw plea where "defendant has presented no

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evidence, other than the statements contained in his

affidavit").

2. Lack of evidentiary hearings. The juvenile also argues

that the motion judge abused her discretion in declining to hold

evidentiary hearings on the motions. When considering a motion

pursuant to Mass. R. Crim. P. 30 (b), "[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'" (citation omitted). Commonwealth v.

Lastowski, 478 Mass. 572, 575 (2018) (affirming decision of

trial judge who denied motion to withdraw guilty pleas without

evidentiary hearing). In his motions, the juvenile requested

evidentiary hearings, but did not raise a "substantial issue"

that would require one, Mass. R. Crim. P. 30 (c) (3). "There

was no abuse of discretion in the motion judge's refusal to hold

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an evidentiary hearing on an allegation supported only by the

[juvenile's] self-serving affidavit[s]." Commonwealth v. Denis,

442 Mass. 617, 634 (2004).

Orders dated August 25, 2023,
and May 31, 2024, denying
motions to vacate
delinquency pleas,
affirmed.

By the Court (Hand, Grant &
Wood, JJ.2),

Clerk

Entered: May 30, 2025.

2 The panelists are listed in order of seniority.

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