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14-P-405                                           Appeals Court

                COMMONWEALTH     vs.   ALEKSANDR TOKAREV.


                               No. 14-P-405.

        Hampden.       January 15, 2015. - August 10, 2015.

            Present:   Fecteau, Wolohojian, & Massing, JJ.


           Practice, Criminal, Plea, Assistance of counsel.



     Complaint received and sworn to in the Springfield Division
of the District Court Department on September 6, 2006.

     A motion to vacate conviction, filed on November 12, 2013,
was heard by Robert A. Gordon, J.


     Cynthia Cullen Payne, Assistant District Attorney, for the
Commonwealth.
     Daniel P. Morrissey for the defendant.


    WOLOHOJIAN, J.      Federal immigration authorities have

informed the defendant that he is deportable based on his

admission seven years ago to sufficient facts to support a

charge of possession of a Class B substance.        In order to avoid

deportation, the defendant moved to vacate his plea on the

ground that his lawyer failed to advise him of the immigration
                                                                    2


consequences of his plea.1,2   During a nonevidentiary hearing on

the defendant's motion, the judge (who had also been the plea

judge) noticed that the defendant had not signed the portion of

the "green sheet" that applies when the court rejects a

defendant's proposed disposition.3,4   In addition, neither the

box next to the statement, "Defendant WITHDRAWS the tendered

plea or admission," nor the box next to the statement,

"Defendant ACCEPTS judge's disposition set forth above," had

been checked.   The judge brought the uncompleted portions of the

green sheet to the parties' attention and solicited additional

briefing.   In response, the defendant filed an amended motion --

unaccompanied by affidavits5 -- in which he argued that the plea


     1
       The defendant's plea resulted in a continuance without a
finding. But that disposition was revoked, and a conviction
entered, after the defendant violated the terms of his
probation.
     2
       The motion was supported by two affidavits:   one from the
defendant and one from plea counsel.
     3
       Not only was that portion of the green sheet not signed by
the defendant or his counsel, the judge mistakenly signed on the
line reserved for counsel.
     4
       The Commonwealth had recommended that the defendant be
placed on one year of probation and remain drug free; the
defendant had proposed six months of probation.
     5
       The failure to submit affidavits when a material fact is
in dispute would have been itself sufficient basis upon which to
deny the motion. See Mass.R.Crim.P. 30(c)(3), as appearing in
435 Mass. 1501 (2001) ("moving parties shall file and serve
. . . affidavits where appropriate in support of their" motion
[emphasis added]).
                                                                   3


was constitutionally deficient because the green sheet did not

reflect that he accepted the judge's disposition.6

     In ruling on the amended motion, the judge found that he

was "unable to state that the Defendant made a decision to

accept or reject the exceeding of the Defendant's

recommendation.   In addition to the defects in the 'plea form'

[green sheet], the Magistrate [on the docket sheet], failed to

mark or 'check' the box under 'Disposition Method' to indicate:

Guilty Plea or Admission to Sufficient Facts accepted after

Colloquy and [G. L. c. 278 § 29D] warning."   On these bases, the

judge allowed the defendant's amended motion, without reaching

the defendant's original claim that counsel had failed to advise

him of the immigration consequences of his plea.

     The transcript of the plea colloquy is no longer available,7

and neither party attempted to reconstruct the record of the

colloquy generally or in particular with respect to the question

     6
       The Commonwealth filed nothing further, relying on the
points and arguments made in its original opposition to the
defendant's motion.
     7
       Defense counsel represented to the judge below that he had
attempted to obtain a copy of the transcript, but that the
clerk's office had informed him that it had been destroyed as
part of the court's customary two and one-half year document
retention policy. "Rule 211(A)(4) of the Special Rules of the
District Courts provides that recordings of pleas (and other
types of proceedings) may be destroyed after two and one-half
years. This rule was necessitated by the difficulty of storing
vast amounts of paper or tapes. In our age of digital
recordings, the continuing need for the rule is less apparent."
Commonwealth v. Cortez, 86 Mass. App. Ct. 789, 790 n.5 (2014).
                                                                   4


of the defendant's acceptance of the disposition.   Although not

requested by either party to make a finding concerning his usual

practice, the judge sua sponte stated he uniformly reviews the

green sheet with every defendant who tenders a plea, and always

asks whether the defendant has read and understood it.8      See

Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928, 930 (1999)

(motion judge was plea judge and noted his own standard practice

at time of plea); Commonwealth v. Diaz, 75 Mass. App. Ct. 347,

351 (2009) ("In the circumstances of a record depleted by the

passage of time, the plea judge's statement of customary

practice can be necessary and probative").

     Where, as here, a defendant seeks to withdraw his plea

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

(2001), after waiting many years, and the record of the plea is

unavailable through no fault of the Commonwealth, the defendant

bears the burden of proof.   Commonwealth v. Grannum, 457 Mass.

128, 133 (2010).9   This requires the defendant to present



     8
       The judge also stated that his uniform practice is to give
the immigration warnings required by G. L. c. 278, § 29D, and
the defendant does not challenge the immigration warnings given
by the judge.
     9
       The burden is different in cases where the motion to
withdraw the plea is based on G. L. c. 278, § 29D, which
requires that the judge deliver in exact language certain
immigration warnings. Grannum, 457 Mass. at 133-134. But this
is not such a case because the defendant does not challenge the
judge's handling of the plea. See note 8, supra. Instead, the
                                                                    5


"sufficient credible and reliable evidence to rebut a

presumption that the prior conviction was valid."    Commonwealth

v. Lopez, 426 Mass. 657, 664-665 (1998).

       The defendant did not meet that burden here as a matter of

law.    Even after the judge sua sponte pointed out the

irregularities on the green sheet and requested additional

submissions from the parties, the defendant came forward with no

evidence to show that he had not accepted the judge's

disposition.   Tellingly, neither the defendant nor his attorney

claim or argue that the defendant did not accept the

disposition.   It certainly would have been a simple matter for

the defendant to submit an affidavit to that effect if such an

assertion honestly could have been made.    Moreover, the

favorable disposition itself, and the fact that the defendant

did not raise any objection to the validity of his plea or the

terms of the disposition during subsequent probation revocation

proceedings, are strong indications that the defendant accepted

the disposition.

       The fact that neither the defendant nor his lawyer signed

the green sheet to show that he accepted the disposition is

neither dispositive nor sufficient to overcome the presumption

of regularity.   As an initial matter, the signature (although



defendant's original motion rested on his contention that his
counsel's performance had fallen short.
                                                                    6


desirable) was not required.    Although Mass.R.Crim.P.

12(c)(2)(B), as appearing in 442 Mass. 1511 (2004), requires

that a District Court judge "inform the defendant that the court

will not impose a disposition that exceeds the terms of the

defendant's request without first giving the defendant the right

to withdraw the plea," there is no rule requiring that the green

sheet be signed to so note.    And, even if a signature were

required, "[w]e will not assume that the defendant's plea was

involuntary and unknowing and say as a matter of law that

justice was not done simply because the record reflects

noncompliance with rule 12."    Commonwealth v. Rodriguez, 52

Mass. App. Ct. 572, 580 (2001).    Moreover, as the judge himself

correctly noted, not much can be reasonably inferred from the

absence of a signature and check marks.10    Taken alone, as the

judge found, the evidence was not enough to permit the judge to

determine whether the defendant had rejected or accepted the

disposition.   Evidentiary equipoise in which a judge cannot tell

whether one thing or its opposite has occurred is not sufficient

to overcome the presumption of regularity.

     For these reasons, we vacate the order allowing the

defendant's motion to withdraw his plea to the extent it was

based on irregularities in the green sheet and docket sheet.

     10
       The same is true, in these circumstances, with respect to
the fact that the clerk-magistrate did not check one of the
boxes on the docket sheet.
                                                                  7


However, because the judge did not reach the defendant's

ineffective assistance of counsel claim, the matter is remanded

for that portion of the motion to be considered.

                                   So ordered.
