Appeals Court (February 19, 2010)

When a defendant seeks to vacate an old guilty plea and no tape or transcript is available due to the passage of time, a retired plea judge's recitation of his or her customary practice constitutes the reconstructed record of the plea. It is not merely evidence rebuttable by contrary affidavits and subject to the scrutiny of a different judge considering a motion for new trial, but, absent extraordinary circumstances, must be considered the definitive statement of what occurred at the plea hearing.

The defendant moved in 2007 to vacate his 1987 admissions to sufficient facts to warrant convictions for operating under the influence of alcohol (OUI) and related offenses, claiming that the plea judge, since retired, did not ensure through a colloquy that his pleas were voluntary and intelligent. There was no tape, transcript, or other record of the proceeding.

In support of his motion, the defendant submitted an affidavit saying that he did not receive a colloquy, as well as affidavits from several local attorneys stating that the plea judge did not provide adequate colloquys to defendants pleading guilty or admitting to sufficient facts in 1987. The Commonwealth submitted an affidavit from the retired plea judge averring that, although he did not remember the specific case, it was his customary practice after 1982, when the Supreme Judicial Court decided Commonwealth v. Duquette, 386 Mass. 384 (1982), to follow its dictate and provide full colloquies. See also Boykin v. Alabama, 395 U.S. 238 (1969). After a non-evidentiary hearing, the motion judge found that, contrary to the plea judge's affidavit, no colloquy was given. He nonetheless denied the motion, finding that "substantial justice" was done. The defendant appealed.

The Appeals Court affirmed, but on grounds different than those asserted by the motion judge. It noted the rule that a plea cannot stand when the defendant did not receive a constitutionally-adequate colloquy, and held that the judge erred by considering extrinsic evidence to determine whether justice was done. The motion judge also erred when he did not defer to the retired plea judge's recitation of his customary practice, and, instead, credited the affidavits of the defendant and the local attorneys, all of which were based solely on the affiants' memory. The Court stated that "because the plea judge's affidavit set forth his practice of conducting colloquies at the time in question, which is presumed valid, it was error for the motion judge to find otherwise." The plea judge's statement was "not mere evidence upon which [the motion judge] could make a determination of credibility. Reconstruction of the record of a plea proceeding is not an adversary process in which a plea judge is reduced to a mere witness." See Commonwealth v. Rzepphiewski, 431 Mass. 48 (2000); Commonwealth v. Quinones, 414 Mass. 423 (1993).

The Court acknowledged that this presumption of validity may be rebutted when, as was not the case here, the defendant offered evidence, such as tapes, transcripts, and first-hand recent observations, that "overwhelmingly demonstrated that over many years the plea judge followed substantially the same pattern of providing 'grossly inadequate' colloquies." See Commonwealth v. Colon, 439 Mass. 513 (2003). The presumption may also, at least in theory, be overcome by proof of judicial bias against the defendant or when a judge demonstrates a "pattern of conduct . . . exhibit[ing] a wilful disregard of the law." See Commonwealth v. Grant, 440 Mass. 1001 (2003).

Lastly, the Court held that the motion judge's recitation of his customary practice was not deficient because it did not set forth the precise set of questions he asked during the colloquy. Rather, a statement that the judge was aware of and adhered to the governing law at the time was sufficient to require a finding that a constitutionally-adequate colloquy was provided.