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Defendant’s Motion to Vacate Plea Denied Despite Attorney’s Failure to Warn of Sex Offender Consequences

gavel-4-1236439-300x200In Commonwealth v. Lastowski, the Supreme Judicial Court affirmed the denial of the defendant’s motion to withdraw his guilty pleas due to the purported ineffectiveness of his attorney. The specifically SJC ruled that the defendant had failed to satisfy the prejudice requirement of the test for ineffectiveness under Commonwealth v. Saferian, 366 Mass. 89 (1974).

The background was as follows. “In 2014, the defendant pleaded guilty to three counts of indecent assault and battery on a person age fourteen or older.” At the plea hearing, the Commonwealth presented evidence that each of the three victims reported to the police that the defendant had inappropriately touched her breast and that “[o]ne of the victims also reported that ‘on one occasion [the defendant] had grabbed her groin area.’” The judge accepted the defendant’s pleas without “inform[ing] [him] of the possible consequences of registration as a sex offender.” The judge “adopted the defendant’s recommendations” as to sentencing and “placed [him] on probation for one year” with conditions. “One year later, the defendant moved to withdraw his guilty pleas, contending that plea counsel was constitutionally ineffective because [he] failed to advise [the defendant] of the duty to register as a sex offender, and its consequences, or explain that [the defendant] might have sought a continuance without a finding.” “[T]he motion judge, who … had also been the plea judge, denied the defendant’s motion.”

In its decision, the SJC opined that the defendant failed the test for demonstrating prejudice in connection with a motion to withdraw a guilty plea, as set forth in Commonwealth v. Clarke, 460 Mass. [30,] 47 [2011]. “First, as the judge found, the defendant did not demonstrate that he had an available, substantial ground of defense. The Commonwealth had a strong case against the defendant, who thus faced a very real possibility of incarceration if convicted at trial. Three separate victims cooperated with the prosecutor and reported the assaults and idiosyncratic conduct of the defendant, namely, his obsession with … touching breasts…. Second, as the judge found, it was ‘extremely unlikely’ that the defendant would have received a continuance without a finding even if he had requested one. The defendant’s record revealed that he had already had four different complaints continued without a finding…. Additionally, he had been convicted of defrauding an insurer. If convicted of the three instant charges, the defendant could have faced a committed sentence. In contrast, by accepting the plea deal, the defendant, who was working and supporting his family, was placed on probation for a term of one year. The motion judge, who was the plea judge, was of course in the best position to know whether he would have found another continuance without a finding acceptable. Third, there were no ‘special circumstances’ identified” in this case supportive of a conclusion that the defendant would have placed special emphasis on the sex offender registration requirement in deciding whether to plead guilty.

A motion to vacate a guilty plea is usually an uphill battle. If you or a loved one has been convicted, you will need a skilled attorney to determine whether there is a legal basis to move for a new trial, and to fight to overturn your conviction in the event that there is such a basis. Attorney Daniel Cappetta has filed numerous motions for new trials and obtained the right results for his clients. Call him for a consultation.