Commonwealth v. Clemens
Commonwealth v. Clemens
Opinion of the Court
In December of 2008, the defendant admitted to sufficient facts on a charge of being an unlicensed private investigator, in violation of G. L. c. 147, § 23, and received a continuation without a finding (CWOF). Several months later, acting through counsel, the defendant moved to withdraw his admission
Thereafter, the defendant filed a motion with a single justice of this court requesting an order directing the District Court to assemble the record. The single justice denied the motion without prejudice to renewal in the District Court. After unsuccessfully petitioning for relief from the Supreme Judicial Court, the defendant returned to the District Court and filed what he called a "motion for renewal of previously filed rule 30(b) motion." On September 1, 2016, a second judge denied that motion in a margin order, finding that "[t]he defendant has failed to establish a basis for 'renewal' of the motion previously decided by [the first judge] in 2012." The defendant filed a notice of appeal from the second judge's order on September 14, 2016. That appeal is now before us.
We conclude that the second judge did not commit "a significant error of law or other abuse of discretion" in denying the "motion for renewal." Commonwealth v. Sylvester,
The merits of the defendant's original rule 30(b) motion are therefore not properly before us. But even assuming, for sake of argument, that we could reach the merits, we would discern no substantial error of law or other abuse of discretion in the first judge's ruling. "[A] judge accepting a guilty plea 'is not required to determine whether the defendant is or is not guilty of the offense charged.' " Commonwealth v. Armstrong,
Order dated September 1, 2016, affirmed.
We will use "admission" and "plea" interchangeably.
The defendant claims that the delay was attributable to the District Court judge's ruling "that no motions [would] be heard while [the defendant was] in default" of his probation. The docket does not reflect any such notation, however. Although the notation does appear on a letter attached as an exhibit to the defendant's brief, the letter is unaccompanied by an affidavit attesting that it is true and accurate and providing the context in which it was sent and received. In any event, the issue is not material to our decision.
We note also that the charge against the defendant was dismissed on June 16, 2015, by operation of the CWOF, rendering "moot any defects in the underlying proceedings." Burns v. Commonwealth,
The defendant has not provided us with a transcript of the plea hearing but does attach as an exhibit to his brief an affidavit from his former attorney, which purports to provide "a true and accurate transcription of" a portion of the hearing. The Commonwealth argues that this affidavit is unreliable and insufficient to meet the defendant's burden to provide a record adequate for appellate review. We will assume that the affidavit is accurate, however, as the issue does not affect our decision.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.