MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Three months after being charged with operating under the influence of liquor, the defendant, Jarrad M. Freitas, admitted to sufficient facts to warrant a guilty finding after a colloquy. On an agreed recommendation of the parties, a District Court judge placed the defendant on probation with conditions and continued the case without a finding for one year. A year later, another judge dismissed the case. Six years later, following a nonevidentiary, virtual hearing via the Zoom Internet-based video conferencing platform, on the defendants motion, the plea judge vacated the defendants admission to sufficient facts without findings or rulings, and the Commonwealth appeals. We now vacate and remand.
Background. Pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), the defendant filed a motion to vacate his admission to sufficient facts. He primarily claimed that the Commonwealth failed to disclose exculpatory evidence that undermined a knowing and voluntary admission, and counsel rendered ineffective assistance. In the only supporting affidavit, the defendant alleged that his decision to admit to sufficient facts was based on information contained in a narrative police report, particularly one line: “he could not blow the required sample to perform the test, therefore, he was given a refusal on the breath test due to interferent detection.” Years after the admission, a new attorney obtained previously undisclosed documents from the Office of Alcohol Testing (OAT) that indicated the attempted breath test included an adequate breath volume that resulted in an incomplete test due to “Interferent Detected.” The defendant viewed this revelation as significant and concluded his affidavit by asserting that he would have opted for a trial if he had known about the undisclosed documents. The motion included copies of the police narrative as well as the undisclosed OAT documents.
After hearing arguments of counsel, the plea judge took the matter under advisement without conducting an evidentiary hearing. He later concluded in an endorsement order: “After hearing and careful review of all submissions the Court allows Deft Motion. A review of facts including the breath test results show that Deft is entitled to receive a New Trial.”
Discussion. A motion to vacate or withdraw an admission to sufficient facts is considered a motion for a new trial under Mass. R. Crim. P. 30 (b). Commonwealth v. Scott, 467 Mass. 336, 337 & n.1, 344 (2014). “A strong policy of finality limits the grant of new trial motions to exceptional situations, and such motions should not be allowed lightly.” Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012). Before allowing a motion for a new trial, “where a substantial issue is raised and is supported by a substantial evidentiary showing, the judge should hold an evidentiary hearing.” Commonwealth v. Stewart, 383 Mass. 253, 260 (1981). An evidentiary hearing “provides the Commonwealth the opportunity to challenge” defense allegations and “also enables the judge to make the findings of fact required to decide the motion.” Gordon, supra at 395. Here, the motion judge “took the unusual step” of granting a motion for a new trial without an evidentiary hearing. Id. at 394.
An evidentiary hearing would have been helpful to evaluate the allegations of a discovery violation rooted in police misconduct. The thrust of the defendants claim, as indicated by the defendants affidavit, was that the “police falsely represented” the breath test result and “bungled the investigation,” and the Commonwealth failed to disclose OAT documents that would have unmasked the police wrongdoing. We are unable to evaluate this claim because the record is limited to the narrative report (authored by a different officer than the breathalyzer operator), the OAT documents, and the defendants affidavit. There is no evidence about the interaction between the breathalyzer operator and the defendant during and after the breathalyzer test, the breathalyzer result that was known to the operator (including any breath test report generated by the breathalyzer), any conversation between the breathalyzer operator and the author of the narrative report, any distinction between “breath sample” and “breath volume” in an attempted breathalyzer test, any explanation of the term “interferent detected” and its affect on a breath sample, and any material provided by the prosecution to the defense through discovery. “The defendant has the burden of proving facts upon which he relies in support of his motion for a new trial.” Commonwealth v. Chatman, 466 Mass. 327, 333 (2013). A motion for a new trial cannot be “grounded on mere speculation.” Commonwealth v. Laguer, 410 Mass. 89, 94 (1991).
An evidentiary hearing would also have been helpful to evaluate the ineffective assistance of counsel claim. In particular, the defendant blamed plea counsel for failing to advise him about “any issues surrounding breath testing in Massachusetts,” uncover the alleged error in the police narrative report, and advise him about a blood sample taken at the hospital following the motor vehicle crash that culminated in his arrest. The record contains no information apart from these conclusory allegations and leaves the defendants presentation “conspicuously marred by failing to include an affidavit from his original defense counsel or to explain the absence of such affidavit.” Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 553–554 (2002). See Mass. R. Crim. P. 30 (c) (3) (“Moving parties shall file and serve and parties opposing a motion may file and serve affidavits where appropriate in support of their respective positions”).
We are not suggesting how the judge should ultimately decide this motion or the overall scope and necessity of an evidentiary hearing. Indeed, a judge may deny a motion for a new trial “on the papers, without hearing, where no substantial issue is raised.” Gordon, 82 Mass. App. Ct. at 394. “A judges power to grant such a motion on the papers is more circumscribed.” Id. If the judge concludes that the defendant has raised a “substantial issue” through a “substantial evidentiary showing,” then an evidentiary hearing should be necessary to test the credibility of the defendants assertions, the materiality of the alleged errors, and any prejudice to the Commonwealth. Stewart, 383 Mass. at 260. See Gordon, supra at 395. Following such a hearing, findings of fact and conclusions of law would aid in appellate review of the claims. See Mass. R. Crim. P. 30 (b) (“Upon the motion the trial judge shall make such findings of fact as are necessary to resolve the defendants allegations of error of law”).
Beyond the factual gaps in the current record, we cannot discern from the judges endorsement order the legal basis for the decision, especially where the record shows the defendant obtained, at his request, a very favorable disposition of his criminal case eight years ago, and he seeks to upset that disposition through allegations of wide-ranging errors (or misconduct) by the police, the prosecution, and his lawyer. See, e.g., Scott, 467 Mass. at 346 (government misconduct may render plea invalid where defendant demonstrates egregiously impermissible conduct was material to decision to plead guilty); Commonwealth v. Sylvain, 466 Mass. 422, 438 (2013) (ineffective assistance of counsel may render plea invalid where defendant demonstrates but for counsels errors he would not have pleaded guilty and would have insisted on going to trial).
Conclusion. The order allowing the defendants motion for a new trial is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.