text:
    Dana YOUNG v. Nicole ST. HILAIRE.
    16-P-1465
    Appeals Court of Massachusetts.
    Entered: March 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Nicole St. Hilaire, appeals from a modification judgment of the Probate and Family Court granting the plaintiff, Dana Young, sole physical and legal custody of the parties' minor child, David. On appeal, the defendant argues that the judge abused her discretion by relying on the reports of the guardians ad litem (GALs) introduced in evidence at trial. The defendant further argues that the judge erred in concluding that there was a change in circumstance sufficient to support the decision to grant the plaintiff sole custody of David. The defendant also challenges a number of subsidiary factual findings made by the judge as being unsupported by the evidence offered at trial. The defendant further argues that she was prejudiced by the trial judge's questioning of a witness at trial. Finally, the defendant argues that the judge's conclusions of law were unsatisfactory. Following oral argument, we remanded the matter to the Probate and Family Court, with directions that the judge make additional findings related to the material change in circumstances subsequent to the March, 2009, agreement for judgment (custody judgment). The judge issued additional findings of fact, discussed infra, which are part of the record before us. We affirm.

Background. We summarize the relevant facts as found by the judge, reserving some facts for later discussion.

The defendant gave birth to David in October, 2005. The plaintiff is David's father. The plaintiff and the defendant were never married to each other. In March, 2009, the plaintiff and the defendant entered into an agreement granting sole legal and physical custody of David to the defendant (this agreement later was subsumed in the custody judgment). On August 20, 2010, the plaintiff filed a complaint for modification seeking sole legal and physical custody of David. In July, 2014, the parties stipulated that the plaintiff would have sole legal and physical custody of David, and further stipulated that the GALs would continue in their role and establish a treatment team to deal with allegations that the defendant possibly suffered from a condition known as "Munchausen by proxy syndrome." David has remained in the plaintiff's care since the stipulation, with the defendant having only limited, supervised contact with David. On March 2, 2016, after a trial on the merits, the modification judgment entered awarding the plaintiff sole legal and physical custody of David. The judge concluded that the plaintiff met his burden of proving a material and substantial change of circumstances since the custody judgment and that it was in David's best interests to transfer custody to the plaintiff.

Discussion. 1. Testimony and reports of the GALs. After the plaintiff's complaint for modification was filed, the parties stipulated to the appointment of the GALs. The GALs were tasked with determining which custody arrangement between the parents would be in David's best interests and the appropriateness of medical and psychological treatment for David. However, shortly after their appointment, the GALs began to develop visitation agreements between the plaintiff and the defendant, in violation of the professional standards set forth in § 1.4 of the Probate and Family Court standards for category E guardians ad litem/evaluators, which states: "The GAL shall not provide ... parent coordination ... or other professional services to any party or the child during the evaluation or pendency of the case." The GALs drafted five reports over the course of a four-year period, and those reports were introduced in evidence at trial over the defendant's objection.

a. GAL credibility. The defendant argues that the trial judge abused her discretion by crediting the testimony and reports of the GALs on the basis that the trial judge also found that the GALs exceeded the scope of their appointment.

"[T]he judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Custody of Eleanor, 414 Mass. 795, 799 (1993). See Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995) ("[T]he credibility of a party or other witness who appeared at trial is quintessentially the domain of the trial judge, in which the judge's assessment is close to immune from reversal on appeal except on the most compelling of showings").

Here, the trial judge's findings make clear that she considered the fact that the GALs "veered off course" by attempting to coordinate visitation arrangements between the plaintiff and the defendant. The trial judge was in the best position to determine what effect, if any, this had on the credibility of the GALs or the validity of their reports. The judge did not abuse her discretion by determining the ultimate conclusions relating to child custody and visitation made by the GALs were sound. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

b. Motion to strike. The defendant further argues that it was error to deny her motion to strike the GAL reports and the testimony of the testifying GAL. At trial, the defendant objected to the introduction of the GAL reports in evidence on the basis that they contained information that predated the custody judgment and on the ground that no advanced notice was given that the plaintiff wished to include them in the exhibit books submitted at trial. As the alleged error was preserved, we review for an abuse of discretion. See Guardianship of Pollard, 54 Mass. App. Ct. 318, 324 (2002).

A judge has the discretion to consider "the widest range of permissible evidence, including the reports and testimony of a court appointed investigator or G.A.L.," as well as "evidence of the history of the relationship between the child and each parent" when determining whether to modify an existing child custody order. Loebel v. Loebel, 77 Mass. App. Ct. 740, 747 (2010), quoting from Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996). As such, the introduction in evidence of the GAL reports at trial should have been anticipated by the parties, Guardianship of Pollard, 54 Mass. App. Ct. at 324, even if they were not included in the exhibit books prior to trial. Furthermore, the judge was entitled to review any information contained in the reports relating to the history of the relationship between each parent and the child. The judge made clear that she was cognizant of the fact that the reports contained information that predated the custody judgment, and her findings do not indicate that she relied on any information that predated that judgment in making her findings of fact or conclusions of law. As such, the trial judge did not abuse her discretion by admitting the GAL reports in evidence.

2. Change in circumstances. The defendant argues that the trial judge erred in concluding that there was a material and substantial change in circumstances sufficient to award the plaintiff sole legal and physical custody of David. We disagree.

A modification of a custody judgment for a child born out of wedlock may be granted where there is a substantial change in the circumstances of the parties or the child, and where modification is in the child's best interests. G. L. c. 209C, § 20. In order to succeed on a modification complaint, the moving party "must demonstrate a material change of circumstances since the entry of the earlier judgment." Downey v. Downey, 55 Mass. App. Ct. 812, 815 (2002) (citation omitted).

The trial judge's initial findings of fact, supplemented by her further findings of fact submitted at the request of this panel, support her conclusion that there were substantial, material changes in circumstances sufficient to support a modification of the existing custody judgment. The findings, which are supported by the record, show that since the custody judgment, the defendant: alienated members of her family; moved to New Hampshire with David without a court order; frequently moved her residence; transferred David out of his school midway through the year; exhibited behavior indicating that she possibly suffered from Munchausen by proxy syndrome; and opted to not participate in treatment related to Munchausen by proxy syndrome. Additionally, the trial judge found that David's anxiety diminished after the defendant was not allowed to be involved in parenting exchanges between the plaintiff and herself. These events constitute a substantial change in the circumstances of the parties and of David, arising after the entry of the custody judgment.

"The determination of which parent will promote a child's best interests rests within the discretion of the judge ... [whose] findings in a custody case 'must stand unless they are plainly wrong.' " J.S. v. C.C., 454 Mass. 652, 656 (2009), quoting from Custody of Kali, 439 Mass. 834, 845 (2003). The judge concluded that David had "blossomed" since the plaintiff was transferred custody in July, 2014, and that David's interests are "undoubtedly served by remaining in [the plaintiff's] care." The evidence amply supports this conclusion. As such, the judge did not err in finding that it was in David's best interests to have sole physical and legal custody rest with the plaintiff.

3. The judge's questioning of a GAL. The defendant further claims that the trial judge erred by questioning a GAL about the possibility that the defendant suffered from Munchausen by proxy syndrome.

"A judge has the right and, in some circumstances, the duty to participate in the examination of a witness." Adoption of Seth, 29 Mass. App. Ct. 343, 351 (1990). However, judicial questioning becomes improper where it is either excessive or lacking in impartiality. See Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 74 (2005). The record shows that the judge was attempting to clarify prior testimony of the GAL by asking questions as to which, if any, medical providers raised the possibility that the defendant may be suffering from Munchausen by proxy syndrome. The questioning was neither excessive, nor did it reflect any bias on the judge's part. There was no error.

Judgment affirmed.

      A pseudonym.

      The defendant challenges numerous findings made by the trial judge as clearly erroneous. Having reviewed the record before us, we conclude that all of the factual findings challenged by the defendant have sufficient record support and are thus not clearly erroneous.

      The fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders refers to Munchausen by proxy syndrome as "factitious disorder imposed on another." We refer to the disorder as Munchausen by proxy syndrome throughout this decision because that terminology appears in the record before us.

      The defendant argues that the trial judge failed to make any conclusions of law. We disagree. The trial judge explicitly found that there was both a substantial and material change of circumstances since the custody judgment, and further found that a change in custody was in David's best interests.


source: Caselaw Access Project

license: Public Domain

text:
    Sharon STOTSKY-HILMAN v. Mark O. DIETRICH & another.
    17-P-891
    Appeals Court of Massachusetts.
    Entered: March 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Mark O. Dietrich, CPA, P.C.

   The plaintiff, Sharon Stotsky-Hilman, engaged the defendant Mark O. Dietrich, a certified public accountant, and his professional corporation (together, Dietrich) to prepare a valuation of her medical practice for her divorce case. In a judgment of divorce nisi dated May 18, 2011, a judge of the Probate and Family Court rejected Dietrich's valuation, citing numerous errors and omissions in Dietrich's analysis. More than four years later, on October 22, 2015, Stotsky-Hilman commenced this action against Dietrich alleging breach of contract, breach of the implied covenant of good faith and fair dealing (together, the contract claims), unfair and deceptive trade practices under G. L. c. 93A, and negligence. Acting on Dietrich's motion for summary judgment, a Superior Court judge concluded that the contract and negligence claims were barred by the applicable statute of limitations, G. L. c. 260, § 4, and that the c. 93A claim failed because the plaintiff's alleged damages were overly speculative. We affirm the judgment.

Discussion. 1. Statute of limitations. a. Contract claims. In his summary judgment motion, Dietrich argued that the plaintiff's tort and contract claims were barred by G. L. c. 260, § 4, as amended through St. 1987, c. 418, which provides that "[a]ctions of contract or tort for malpractice, error or mistake against attorneys, certified public accountants and public accountants ... shall be commenced only within three years next after the cause of action accrues." The plaintiff contends that G. L. c. 260, § 4, is inapplicable, asserting that although Dietrich is a certified public accountant, he did not provide accounting services, but rather performed business valuation services, which do not necessarily require an accountant.

The motion judge did not address this contention, however, because the plaintiff did not make this argument in opposing the summary judgment motion. To the contrary, she conceded that the tort claim was barred, but asserted that the contract claims were outside the statute because they were independent and distinct from her claim of accounting malpractice and therefore subject to the six-year statute of limitations in G. L. c. 260, § 2.

Appellate courts generally do not consider questions raised for the first time on appeal. See Amherst Nursing Home, Inc. v. Commonwealth, 398 Mass. 850, 852 (1986) ; Shapiro v. Grinspoon, 27 Mass. App. Ct. 596, 601 (1989). "[W]e are particularly reluctant to do so where there are no factual findings directed to the theory now advanced." Commonwealth v. Daniel, 464 Mass. 746, 755 (2013). Even assuming that the statute is implicitly limited to malpractice claims against certified public accountants performing accounting services, to fully evaluate the plaintiff's claim that Dietrich was not engaged in such services, we would require information concerning business valuation and appraisal services and the accounting profession that go beyond the present record. Accordingly, we decline to address the plaintiff's new theory.

The plaintiff's assertion that her contract claims are distinct from her malpractice claim is not persuasive. As an initial matter, the Legislature explicitly included contract as well as tort claims in G. L. c. 260, § 4, cognizant of the fact that claims of professional malpractice, whether sounding in contract or in tort, generally arise from a common nucleus of facts. See Hendrickson v. Sears, 365 Mass. 83, 85 (1974). "That limitation statutes should apply equally to similar facts regardless of the form of proceeding is intrinsically a sound proposition." Ibid.

"A plaintiff may not, of course, escape the consequences of a statute of repose or statute of limitations on tort actions merely by labelling the claim as contractual." Anthony's Pier Four, Inc. v. Crandall Dry Dock Engrs., Inc., 396 Mass. 818, 823 (1986). Even if G. L. c. 260, § 4, did not explicitly bar the plaintiff's contract claims, we would reach the same result were we to "look[ ] to the 'gist of the action' or the essential nature of the plaintiff's claim." Hendrickson, supra, quoting from Brackett v. Perry, 201 Mass. 502, 504 (1909).

The gist of the plaintiff's complaint is that Dietrich's valuation of her medical practice was so inept that the judge in her divorce proceeding rejected it, choosing the husband's higher valuation instead and, consequently, ordering the plaintiff to make substantially higher payments to the husband to effect the division of the marital estate. To establish that she was truly proceeding in contract rather than in tort, the plaintiff would need to point to specific provisions in her agreement with Dietrich imposing a higher standard of care than "that standard of reasonable care required of members of his profession," Klein v. Catalano, 386 Mass. 701, 719 (1982), or promising a specific result. See id. at 720 ; Anthony's Pier Four, Inc., supra at 822 ("Because the standard of performance is set by the defendants' promises, rather than imposed by law, an express warranty claim is and generally has been understood to be an action of contract, rather than of tort").

The engagement letter provides no such promise. To the contrary, Dietrich did not undertake to exceed industry standards, but to conform to them. He did not promise any particular outcome; rather, the engagement letter was replete with disclaimers and conditions. Dietrich's alleged failures to consult with the plaintiff, to respond to her inquiries, or to allow her to review his work product are related to her claim of professional negligence; they are not distinct contract claims. Because the "gist of the action" sounds in tort, the three-year tort period of limitations applies. See Pagliuca v. Boston, 35 Mass. App. Ct. 820, 823 (1994) ; Barber v. Fox, 36 Mass. App. Ct. 525, 529 (1994).

b. Chapter 93A claim. The motion judge concluded that a disputed factual issue existed regarding whether the plaintiff's c. 93A claim arising from Dietrich's alleged overbilling was within the four-year statute of limitations set forth in G. L. c. 260, § 5A, but granted summary judgment to Dietrich on other grounds. We affirm on the ground that the claim is barred by the statute of limitations. See Gabbidon v. King, 414 Mass. 685, 686 (1993) ("[O]n appeal, we may consider any ground apparent on the record that supports the result reached in the lower court").

If the cause of action accrued when the plaintiff made her final payment to Dietrich in June, 2011, her claim would be barred, but if the cause of action did not accrue until October 26, 2011, the date of Dietrich's final invoice, the claim would fall within the limitations period by a matter of days. In the engagement letter, Dietrich estimated that his fee for the valuation would be "in the vicinity of $14,000." By June, 2011, Dietrich had submitted invoices totaling more than $113,000, which the plaintiff had paid. On October 26, 2011, Dietrich submitted his final invoice, in the amount of $2,290, which went unpaid.

On this summary judgment record, which we review de novo, we see no genuine issue as to any material fact demonstrating that the plaintiff was on notice of Dietrich's alleged overbilling no later than June, 2011. The statute of limitations begins to run when the plaintiff knows or reasonably should know that she has been injured by the defendant; she need not appreciate the full extent of her injury for the cause of action to accrue. See Williams v. Ely, 423 Mass. 467, 473 (1996) ; Vinci v. Byers, 65 Mass. App. Ct. 135, 139 (2005). Her c. 93A claim is untimely.

2. Outstanding discovery and rule 56(f). Finally, the plaintiff contends that the motion judge acted on the summary judgment motion prematurely, before Dietrich had fully complied with his discovery obligations. See Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974). Assuming that Dietrich did withhold discovery materials (which Dietrich denies), the plaintiff still must show that further discovery would be relevant to the claims being adjudicated. See Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 307-308 (1991) ; Blake Bros. Corp. v. Roche, 12 Mass. App. Ct. 556, 560 (1981). The plaintiff asserts that further discovery from Dietrich might shed light on the full extent of his professional malpractice and the true measure of her damages. But the plaintiff has not been able to articulate, nor are we able to discern, how further discovery would be relevant to the issue of when her causes of action accrued. The motion judge did not abuse her discretion in acting on the summary judgment motion. See id. at 560-561.

Judgment affirmed.

      Dietrich maintains that the plaintiff's divorce attorneys retained him and that he has no contract with the plaintiff. For the purposes of this appeal, we assume the existence of a contractual relationship.

      Dietrich responds that he did in fact perform services as a certified public accountant, noting that his engagement letter stated, "I will perform an appraisal (valuation, as that term is defined in the Statement on Standards for Valuation Services of the American Institute of Certified Public Accountants)."

      Dietrich undertook to perform the valuation "in conformance with the Business Valuation Standards of the American Society of Appraisers, used in conjunction with the Uniform Standards of Professional Appraisal Practice (USPAP) of The Appraisal Foundation and the Principles of Appraisal Practice and Code of Ethics of the American Society of Appraisers and Statement on Standards for Valuation Services of the American Institute of Certified Public Accountants."

      The plaintiff also alleged that Dietrich engaged in unfair and deceptive trade practices by failing to consult with her and her advisers during the valuation, "failing to use comparables" suggested by the plaintiff, and failing to perform the appraisal as promised. All of these alleged wrongs occurred and were known or knowable to the plaintiff more than four years before she filed her complaint.


text:
    COMMONWEALTH v. Daniel SCOTT.
    16-P-1433
    Appeals Court of Massachusetts.
    Entered: March 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Daniel Scott, was convicted in the Superior Court of larceny over $250, in violation of G. L. c. 266, § 30, after a jury trial and of being a habitual offender, in violation of G. L. c. 279, § 25, after a jury-waived trial. The defendant argues on appeal that the judge erred in allowing the Commonwealth to use his two prior convictions of larceny over $250 for impeachment purposes. Specifically, the defendant argues that his two prior larceny convictions should not have been allowed for impeachment purposes because: (1) the two prior larceny convictions are identical to the charge for which he was being tried; (2) the two prior larceny convictions are not probative of truthfulness, and (3) the judge applied the wrong standard when weighing the probative and prejudicial values of the two prior convictions. We affirm.

Background. Prior to trial, the Commonwealth filed a motion in limine seeking to impeach the defendant using three of his prior convictions, i.e., his attempted firebombing conviction and two larceny over $250 convictions. The judge denied the Commonwealth's request to use the defendant's attempted firebombing conviction, but allowed the Commonwealth's request to use his two larceny convictions. The defendant did not testify at trial.

Discussion. We review a judge's decision allowing evidence of a defendant's prior conviction for impeachment purposes for an abuse of discretion. See Commonwealth v. Maguire, 392 Mass. 466, 470 (1984). "A judge has discretion to exclude evidence of a prior conviction, otherwise admissible to be used for impeachment under G. L. c. 233, § 21, if the danger of unfair prejudice resulting from such evidence outweighs its probative value." Commonwealth v. Crouse, 447 Mass. 558, 565 (2006). In determining whether the prejudicial effect outweighs the probative value, a judge considers the similarity between the offense being tried and the prior conviction. Ibid. A prior conviction that is substantially similar to the offense being tried "may be justified in the absence of other prior convictions with which to impeach a defendant's testimony." Ibid., citing Commonwealth v. Whitman, 416 Mass. 90, 95 (1993).

Here, the judge engaged in the required balancing test and determined that, although the two prior larceny convictions are the "same crime" as the offense being tried and were "fairly recent," the prior larceny convictions involve "dishonesty that does go to [the defendant's] credibility." The judge reasoned that "[t]he case law is clear that there's more thinking involved in making a decision to be dishonest ..., and therefore it's much more relevant to the question of credibility than would be a crime of violence, for instance, or a drug sale, or something like that." We see no abuse of discretion.

The defendant next argues that the prior larceny convictions are not probative of his truthfulness and, therefore, should not have been admitted for impeachment purposes. The Supreme Judicial Court, however, has recognized that theft-related crimes are probative of truthfulness for impeachment purposes. See Commonwealth v. Sheeran, 370 Mass. 82, 89 (1976) ("Since commission of that crime 'significantly revealed a willingness or disposition on the part of the particular defendant voluntarily to place the advancement of his individual self-interest ahead of principle or of the interests of society, proof thereof may be relevant to suggest his readiness to do so again on the witness stand' "). Furthermore, "[t]hat a prior conviction may not appear probative of a defendant's capacity to tell the truth has little or no bearing on the judge's discretion." Crouse, supra at 565 n.5.

Lastly, the defendant argues that the judge applied the wrong standard when weighing the probative and prejudicial values of the prior larceny convictions. During his ruling, the judge stated that "there's not enough danger of prejudice ... to overcome, to substantially outweigh the probative value of [the] two [prior larceny] convictions." The defendant challenges the judge's use of the word "substantially" in reaching his decision. We see no error. Pursuant to the Massachusetts Guide to Evidence, with certain exceptions, "[a] party may seek to impeach the credibility of a witness by means of the court record of the witness's conviction or a certified copy, ... [without] mak[ing] reference to the sentence that was imposed, Mass. G. Evid. § 609 (2017), provided that the "probative value [of such evidence] is [not] substantially outweighed by a danger of unfair prejudice" (emphasis added). Mass. G. Evid. § 403. The judge appropriately weighed the probative and prejudicial values of the two prior larceny convictions. See Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27 (2014).

Judgment affirmed.

      According to the defendant, his prior convictions at the time of trial included: possession of a class B controlled substance, assault and battery by means of a dangerous weapon, knowingly receiving stolen property, possession of burglarious tools, two counts of malicious destruction of property, arson, throwing explosives, malicious destruction of property, breaking and entering in the nighttime with the intent to commit a felony, conspiracy to throw explosives, and two counts of larceny over $250.


text:
    Michelle NERETTE v. PARTNERS HEALTHCARE SYSTEM, INC., & others.
    17-P-381
    Appeals Court of Massachusetts.
    Entered: March 9, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Mary Doherty, Kimberly Gorman, and Lorraine Morse.

   Michelle Nerette has appealed from an order of the Superior Court dismissing her appeal from a judgment entered for the defendants on her claims against Partners Healthcare System, Inc. (Partners), and several of its employees. The complaint alleged claims for employment discrimination, retaliation, and a hostile working environment against Partners, as well as claims against her former supervisors for aiding and abetting Partners's discriminatory acts. However, the inadequacies of Nerette's submissions to this panel prevent a meaningful review of her appeal. Accordingly, we affirm.

As Nerette failed to provide us with a record appendix, we recount what facts we can glean from the trial court and single justice dockets, of which we take judicial notice, see Sullivan v. Smith, 90 Mass. App. Ct. 743, 744 (2016) (appellate court may take judicial notice of dockets in related cases), and from the incomplete copy of the judge's decision attached as an addendum to the plaintiff's brief.

Nerette filed a timely notice of appeal from the Superior Court judgment. Shortly thereafter, Nerette's counsel withdrew his appearance. An assistant clerk in the Superior Court assembled the record on March 8, 2016, but the appeal was not docketed in this court within the ten-day period permitted by Mass.R.A.P. 10(a)(1), as amended, 435 Mass. 1601 (2001). The defendants filed a motion to dismiss the appeal in the Superior Court on April 29, 2016, pursuant to Mass.R.A.P. 10(c), as amended, 417 Mass. 1602 (1994). The motion, which was unopposed, was allowed on May 10, 2016. No timely notice of appeal from that order was filed. Rather, several months later, Nerette filed a motion to docket her appeal late with a single justice of this court. The appeal already having been dismissed, the single justice denied the motion to docket the appeal late, but permitted Nerette to file a late notice of appeal from the Superior Court order dismissing her appeal. This appeal ensued.

Pursuant to Mass.R.A.P. 10(c), if an appellant fails to docket an appeal in a timely manner, "the lower court may, on motion with notice by any appellee, dismiss the appeal, but only upon a finding of inexcusable neglect." At issue in this appeal is whether the Superior Court judge abused his discretion by allowing the defendants' motion to dismiss the appeal from the judgment. See Scheuer v. Mahoney, 80 Mass. App. Ct. 704, 708 (2011). Nerette's brief on this point is unpersuasive.

Nerette did not oppose the motion to dismiss the appeal, and she does not dispute that the appeal from the judgment was not docketed in a timely manner. Rather, Nerette argues that there were three factors that prevented her from docketing her appeal: (1) she was unemployed at the time and unable to pay court fees, (2) she was unfamiliar with court procedures, and (3) her attorney withdrew after the motion for summary judgment was allowed and she misunderstood the timeline and necessity to docket her appeal. However, because Nerette failed to file an opposition to the motion to dismiss, none of these assertions was before the judge. "An issue not raised or argued below may not be argued for the first time on appeal." Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (citation omitted). Accordingly, we deem the issues waived. Ibid.

Moreover, Nerette's failure to provide this panel with a record appendix-including a copy of the motion to dismiss, the order allowing the motion to dismiss, or any of the pleadings, motions, or dispositive orders filed in the underlying action-prevents our meaningful review of the order allowing the motion to dismiss, and inhibits our ability to assess whether an appeal from the underlying judgment presents any meritorious issues. See Tisei v. Building Inspector of Marlborough, 3 Mass. App. Ct. 377, 379 (1975) ("showing of a meritorious case is required" to permit appeal to be docketed out of time).

In these circumstances, Nerette has failed to establish, and we cannot conclude, that "the judge made a 'clear error of judgment in weighing' the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Order allowing motion to dismiss appeal affirmed.


text:
    COMMONWEALTH v. Paulo J. TAVARES.
    16-P-1732
    Appeals Court of Massachusetts.
    Entered: March 8, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the denial of his motion for a new trial, arguing that the judge abused his discretion when he denied the motion. The defendant claims that, because he required the assistance of an interpreter at the plea hearing and none was provided, his plea was not knowing and intelligent. We affirm.

On May 10, 2004, the defendant was charged in the Dorchester Division of the Boston Municipal Court with eleven offenses relating to the theft of an automobile. According to the docket sheet, no interpreter was present during the arraignment. However, a Cape Verdean Creole interpreter was requested for an August 23, 2004, pretrial hearing; the hearing was continued to October 4, 2004, and an interpreter was requested for that date. The defendant failed to appear on that date and a warrant issued for his arrest.

On February 8, 2005, the defendant, who then was being held in the Suffolk County jail, filed a motion for a speedy trial and to remove the outstanding warrant. In response, a judge appointed counsel for the defendant, and the court issued a writ of habeas corpus to secure his presence at a hearing on his motion. No request for an interpreter was made for that hearing; nor was an interpreter requested for the defendant's appearance at a later hearing scheduled for April 11, 2005.

On April 11, 2005, represented by counsel, the defendant pleaded guilty to counts 2, 3, 4, 6, and 11, and was placed on probation. Thereafter, between 2005 and 2007, the defendant was before the court for several probation violation hearings; no docket entries during that period indicate the presence of an interpreter. On July 5, 2007, the defendant was discharged and his probation terminated.

Nearly eight years after the pleas, on January 12, 2012, the defendant, represented by new counsel, filed a motion for a new trial, alleging that his attorney should have known that an interpreter was required and that, because of his limited understanding of English at the time of his plea, he did not understand its consequences. According to the defendant, this failure rendered his plea unknowing and unintelligent. Included in the papers filed with the motion was the defendant's affidavit, an affidavit from plea counsel, the court's docket sheet, and tender of plea form (the green sheet). After a hearing, the judge, who was also the plea judge, denied the motion. Later, at the request of the defendant, the judge issued written findings. A transcript of the plea hearing was unavailable due to the passage of time.

The defendant, in his supporting affidavit, claimed that no interpreter was present at the plea hearing "even though the judge said we needed one before," and, also, that he did not understand many of the things his attorney said to him or that the judge said during the proceeding. He contends that he had spent the previous several months in jail and that his attorney told him to say "yes" to the judge's questions and, if he did so, he would be able to go home that day.

Plea counsel's affidavit corroborates some of what the defendant claims. He agreed that an interpreter was not present at the plea hearing. However, during his discussions with the defendant, he believed that the defendant understood the immigration consequences that would result from the plea as he explained them to him. On the other hand, counsel noted that "due to his limited English language skills it is possible that [the defendant] did not fully understand the immigration consequences of conviction."

Discussion. When a defendant appeals from the denial of a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), we review "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 350 (2009), quoting from Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006). "We grant substantial deference to a decision denying a rule 30(b) motion ... when the judge passing on the motion is the same judge who heard the plea." Commonwealth v. Williams, 71 Mass. App. Ct. 348, 353-354 (2008), quoting from Commonwealth v. Grant, 426 Mass. 667, 672 (1998). In addition, when the motion is based on a claim of ineffective assistance of counsel, the defendant must demonstrate that counsel's behavior fell "below that of an ordinary, fallible lawyer and that such failing 'likely deprived the defendant of an otherwise available, substantial ground of defence.' " Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). The judge is not required to credit an affidavit submitted by the defendant "even if it is undisputed." Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 551 (2002).

In denying the motion, the judge in this case explicitly did not credit the defendant's claim that he did not understand the consequences of his plea because he did not have an interpreter present. The judge stated that, when a transcript is unavailable, he relies on his knowledge of his customary and regular practice, which is to "provide[ ] an extensive colloquy with a defendant that complies with [r]ule 12 o[f] the Mass. Rules of Criminal Procedure." Relying on this customary plea colloquy practice, the judge was confident that the defendant "engaged in a constitutionally sufficient colloquy." In addition, because the transcript of the plea colloquy no longer exists, we also rely on a presumption of regularity, thus requiring the defendant to prove that his plea was unknowing. See Commonwealth v. Grannum, 457 Mass. 128, 132-133 (2010).

That is, the defendant must now produce credible and reliable evidence to rebut that presumption of regularity and to prove that his guilty plea was not intelligent and voluntary. See Commonwealth v. Hoyle, 67 Mass. App. Ct. 10, 14-15 (2006) ("This presumption of regularity, normally afforded collateral review of proceedings in which the record has been lost or destroyed, stands, unless and until a defendant advances countervailing credible and persuasive evidence sufficient to rebut that presumption").

Here, we agree with the plea judge that the defendant's submissions concerning the lack of an interpreter were not sufficient to rebut this presumption of regularity. See id. at 15. The judge stated that he "would not have conducted a colloquy if there was any question that the defendant was confused or did not understand the consequences of the plea. Clearly trial counsel did not raise the issue at the time, and [the judge found] that it was not because counsel was ineffective but rather it was not a concern that needed to be addressed." In addition, the judge's review of the court docket sheet and green sheet confirmed his conclusion that there was a valid waiver and plea. Finally, the judge also noted that the defendant had appeared in court several times after entering the plea, and never had raised the issue of an interpreter. Based on the foregoing, we discern no error, and certainly no abuse of discretion.

Order denying motion for new trial affirmed.

      Larceny of a motor vehicle (count 1); receiving a stolen motor vehicle (count 2); failure to stop for police (count 3); unlicensed operation of a motor vehicle (count 4); failure to stop or yield (count 5); negligent operation of a motor vehicle (count 6); forging or misuse of a Registry of Motor Vehicles (RMV) document (counts 7, 8, and 9); number plate violation (count 10); number plate violation to conceal identity (count 11).

      Counts 3 and 4 were placed on file. Counts 5 and 10 were civil motor vehicle infractions and they were placed on file with findings of responsible. Counts 1, 7, 8, and 9 were dismissed at the request of the Commonwealth.

      According to the defendant, he filed his motion on December 29, 2011, but, due to confusion in the clerk's office, his motion was not docketed. He filed an identical copy of the motion and memorandum of law on January 12, 2012. It is unclear on this record why the appeal was not received in this court until December, 2016; however, neither party raises this issue on appeal. It is therefore waived. See Commonwealth v. Chase, 433 Mass. 293, 299 (2001).

      See District Court Special Rule 211(A)(4) requiring preservation of court recordings for only two and one-half years. A transcript of the motion hearing also is not included in this record.


text:
    COMMONWEALTH v. Guillermo PORRAS.
    17-P-350
    Appeals Court of Massachusetts.
    Entered: March 8, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of indecent assault and battery on a child under fourteen years of age (count 3), and two counts of indecent assault and battery on a person fourteen years of age or older (counts 6 and 7). On appeal, he claims that the latter two convictions are duplicative, requiring the dismissal of one. We affirm.

"Under the double jeopardy clause of the Fifth Amendment to the United States Constitution ..., no person may be convicted twice for the same offense." Commonwealth v. Horne, 466 Mass. 440, 449 (2013). Where a single statute is involved, we must decide "whether two ... discrete offenses were proved under that statute" or whether the conduct at issue constituted a single continuing offense. Commonwealth v. Dykens, 473 Mass. 635, 640 (2016), quoting from Commonwealth v. Traylor, 472 Mass. 260, 268 (2015). For the first time on appeal, the defendant claims that counts 6 and 7 were part of a continuing course of conduct. We disagree.

A defendant's actions underlying two counts of indecent assault and battery can lead to separate convictions and punishments as long as the conduct supporting one count of indecent assault and battery was not incidental and necessary to the other. See Commonwealth v. Suero, 465 Mass. 215, 221 (2013) ; Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267, 273-274 (2013) (defendant's lifting up victim's bra and licking her breast separate and distinct act from rape). Here, the defendant was convicted of two counts of indecent assault and battery stemming from his conduct on March 31, 2014. As the judge explained to the jury, the allegation underlying the first act (count 6) was the defendant's indecent touching of the victim's buttocks, and the allegation underlying the second act (count 7) was the defendant's rubbing his penis on the victim's vagina. In general, with respect to all the indictments, the judge instructed the jury that they must consider each charge separately.

Counts 6 and 7 called upon the Commonwealth to prove two separate and distinct actions. The defendant's touching of the victim's buttocks was not incidental and necessary to his rubbing his penis on her vagina. In other words, neither act was a necessary part of the other. See Commonwealth v. Howze, 58 Mass. App. Ct. 147, 152-153 (2003) (moving victim's underwear to side was "necessarily accomplished on the commission of the greater crime of rape"). In particular, the defendant unfastened his pants and rubbed his penis against the victim's vagina, simulating intercourse. He then put his hands down the victim's pants and touched her buttocks with his hands. Thus, the defendant's two convictions on counts 6 and 7 were based on two separate and distinct indecent touchings of the victim's body, neither of which was bound up with or necessary to complete the other act. See Rodriguez, supra. See also Commonwealth v. Fitzpatrick, 14 Mass. App. Ct. 1001, 1003 (1982) ("An indecent contact which is separate from and not incidental to the act of penetration does not merge with the crime of rape to constitute but a single offense ..."). The convictions were not duplicative, and thus, there was no error resulting in any miscarriage of justice.

Judgments affirmed.

      The defendant does not challenge this conviction.

      The defendant did not request a separate acts instruction, or a continuing course of conduct instruction, and he lodged no objection to the judge's charge.


text:
    Hemalatha N. FRASCA v. Richard A. FRASCA.
    17-P-650
    Appeals Court of Massachusetts.
    Entered: March 8, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The appellant, Richard Frasca (husband), appeals from the second corrected judgment of divorce nisi, which incorporates the original judgment and the first corrected judgment of divorce nisi, issued in the Probate and Family Court (judgment). On appeal, he maintains that the judge erred in: (1) assigning his ex-wife, Hemalatha Frasca (wife), thirty-five percent of any future inheritances he may receive; (2) failing to consider the wife's interest in a property located in India; and (3) awarding his personal property to the wife. We vacate in part and remand.

Background. The parties were married for roughly thirty-four years. After both spouses filed for divorce, the consolidated complaints came before a judge of the Probate and Family Court, and the judge found the following facts.

The parties lived an upper middle class life-style, funded in large part by the husband's mother. Among other things, the husband's mother provided a home in Boston for them to live in, bought them an investment property in California, and paid for their children's private schooling from preschool through college. The husband holds a Ph.D. and has taught at many prestigious universities, while the wife earned a general education diploma (GED) and has not been employed outside the home. At the time of their divorce proceedings, the husband's mother was paying for him to live in a retirement community, and the wife was living in the marital home rent free. The judge found that the wife was completely financially dependent on the husband and his family's wealth.

Discussion. 1. Future inheritance. The husband contends that because he had no vested interest in an inheritance at the time of the divorce, the judge's assignment of any future inheritance constituted an abuse of discretion, requiring reversal. We agree.

General Laws c. 208, § 34, provides "for the equitable division of the property interests of partners in a marriage." Davidson v. Davidson, 19 Mass. App. Ct. 364, 369 (1985). When reviewing a divorce judgment, we examine (1) whether the judge considered all the factors outlined in § 34 when dividing the marital assets; and (2) whether the judge's reasoning is apparent from the findings and rulings. See Adams v. Adams, 459 Mass. 361, 371 (2011). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." Hoegen v. Hoegen, 89 Mass. App. Ct. 6, 9 (2016), quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

An expectancy of future inheritance is not considered part of the marital estate, but a judge may take the expectancy into consideration when determining how to equitably divide the marital assets pursuant to G. L. c. 208, § 34. See Pfannenstiehl v. Pfannenstiehl, 475 Mass. 105, 111 (2016) ("When interests are properly characterized as mere expectancies ... they may not be included in the divisible estate of the divorcing parties"); Davidson, supra at 374-375; Zeh v. Zeh, 35 Mass. App. Ct. 260, 264 (1993). Here, when allocating the marital property, it was well within the judge's discretion to consider the high probability that the husband would inherit from his still-living mother at some point in the future. It was error, however, to assign the wife thirty-five percent of any future inheritances that the husband may receive. See Davidson, supra (husband's expectancy under still-living mother's will was not part of marital estate). Cf. Zeh, supra ("An inheritance in possession clearly stands on different footing [from an expectancy of an inheritance] and constitutes part of the estate of the recipient subject to division under § 34"). For this reason, that portion of the judgment must be vacated. ,

2. India property. The husband also contends that the trial judge erred in failing to find that the wife owned property in India. Alternatively, he maintains that the judge should have considered the wife's ability to generate rental income from this property.

"Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Mass.R.Dom.Rel.P. 52(a). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Barboza v. McLeod, 447 Mass. 468, 469 (2006), quoting from Marlow v. New Bedford, 369 Mass. 501, 508 (1976). The appellant bears the burden of showing that a finding of fact is clearly erroneous. See Pointer v. Castellani, 455 Mass. 537, 539 (2009).

At trial, the husband claimed that the wife owned and rented out a property in India, while the wife maintained that a Hindu temple owned the land, but that she paid taxes and had the right to live on the property. The resolution of conflicting testimony was for the judge, who explicitly credited the wife's testimony that she did not own the land. See Baccanti v. Morton, 434 Mass. 787, 790-791 (2001). The judge's factual findings were not clearly erroneous.

3. Personal property. Lastly, the husband takes issue with the portion of the judgment that provides for each party to "retain ... all personal property ... presently in their possession." He maintains that the judge erroneously granted the wife his academic work and papers, because she has no interest in them. At the time of the divorce, his possessions were in the marital home with the wife. The husband testified about these personal possessions, but the judge made no explicit findings, nor provided any rationale for her decision to grant "all" personal property to the wife. The record is devoid of evidence or rationale to support the award with respect to the academic papers. On remand, the judge should once again consider the disposition of the husband's academic papers and provide written findings. See Redding v. Redding, 398 Mass. 102, 108 (1986) (reasons for judge's conclusions "must be apparent in [her] findings and rulings").

So much of the second corrected judgment that divides the marital assets, as well as the portion of the second corrected judgment awarding personal property, are vacated, and the matter is remanded for further proceedings consistent with this memorandum and order. In all other respects the second corrected judgment is affirmed.

So ordered.

Vacated in part and remanded; affirmed in part.

      Although there was testimony on both sides regarding the possibility of a trust benefiting the husband, and the judge credited the wife's testimony that she had seen a family trust, there was no evidence that the husband had a present and enforceable interest in any trust. Contrast Lauricella v. Lauricella, 409 Mass. 211, 216-217 (1991) ; Ruml v. Ruml, 50 Mass. App. Ct. 500, 510-512 (2000).

      Although the judgment provides that neither party will presently pay alimony to the other, the judge also concluded that the grant of thirty-five percent of any of the husband's future inheritances will "mirror the alimony statutory guidelines ... to meet [w]ife's needs." We note that the concepts of alimony and property division are "separate and distinct." Heins v. Ledis, 422 Mass. 477, 482 (1993). However, as noted above, the judge may consider the husband's expectancy in a future inheritance when dividing the marital assets. See Pfannenstiehl, supra.

      The judgment provides that the wife will not receive alimony "at this time." We express no opinion as to any future complaint for modification of alimony should the husband receive the inheritance.

      The husband brought a motion to reconsider which was denied without explanation.


text:
    COMMONWEALTH v. Emanuel DIAS.
    16-P-1439
    Appeals Court of Massachusetts.
    Entered: March 7, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant admitted to facts sufficient to support a finding of guilty on charges of uttering a false prescription and conspiracy to violate the Controlled Substances Act; he later filed a motion to withdraw his admission. He now appeals from the order denying that motion, arguing that the admission was not knowing and intelligent, because the judge failed to advise him properly of the potential immigration consequences of such an admission, as required by G. L. c. 278, § 29D. We affirm.

On June 21, 2012, the defendant admitted to sufficient facts on the two charges, and the case was continued without a finding. The defendant was placed on probation, with certain conditions, until the charges were dismissed on April 23, 2013. More than three years later, on June 14, 2016, the defendant filed a motion to withdraw his admission. He alleged that the § 29D warning provided did not comply with the statutory language in effect at that time. Specifically, he claimed that, although the warning may have complied with the previous (pre-2004) version of the statute, what he described as the outdated language failed to advise the defendant explicitly that an admission to sufficient facts could result in immigration consequences.

The defendant also argued that, according to the Immigration and Customs Enforcement (ICE) official November, 2014, memorandum entitled "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants" (ICE memo), his convictions place him, as a noncitizen of the United States, into the highest priority level for deportation. At the time his motion was heard, however, the defendant was not being detained by ICE awaiting deportation, nor was there evidence that detention was imminent or that any such proceeding had begun. After a hearing on July 22, 2016, the motion judge, who was also the plea judge, denied the motion, providing thorough written findings. The defendant timely appealed.

"A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass.R.Crim.P. 30(b) [, as appearing in 435 Mass. 1501 (2001) ]." Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016), quoting from Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). When a defendant appeals the denial of his motion for new trial, we review "only to determine whether there has been a significant error of law or other abuse of discretion." Ibid., quoting from Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015). Substantial deference is given to a decision on a rule 30(b) motion "when the judge passing on the motion is the same judge who heard the plea."Ibid., quoting from Commonwealth v. Grant, 426 Mass. 667, 672 (1998).

The defendant does not contend that the plea judge failed to provide an immigration warning of any sort. Rather, he argues that the warning was inadequate because the judge failed to use the words "admission to sufficient facts" in the immigration warning. The warning prescribed by the statute is this: "If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States." G. L. c. 278, § 29D, as amended by St. 2004, c. 225, § 1. Section 2 of the 2004 amendment requires that the warning specifically refer to admissions to sufficient facts, as well as to guilty pleas and pleas of nolo contendere that occur after the effective date of the act (October 27, 2004). Compare Commonwealth v. Villalobos, 437 Mass. 797, 800 (2002), decided before the amendment, where the court noted that failure to include the words "admission to sufficient facts" in the statutory warning did not suffice to permit the defendant to withdraw his admission.

In the present case, according to the transcript of the plea hearing, on several occasions the judge explicitly informed, or asked the defendant if he understood, that "by admitting today" to the facts read by the prosecutor, he was giving up his right to trial by judge or jury, his right to be presumed innocent, and his right to have the Commonwealth prove, beyond a reasonable doubt, the charges against him. As to possible immigration consequences, the judge said, "You understand, sir, that if you are not a citizen of the United States, you could suffer deportation, denial of naturalization, or exclusion or reentry into the United States .... Do you understand that sir?" After receiving affirmative responses from the defendant to each question posed, the judge concluded that the defendant's admission was "knowingly, voluntarily, and intelligently made." Significantly, this warning did not imply that only a plea of guilty could produce the unfavorable immigration consequences, but rather informed the defendant specifically that the action he was taking could indeed cause him to "suffer deportation, denial of naturalization, or exclusion." For that reason, we are satisfied that the warning provided was adequate.

The defendant also contends that submitting the ICE memo was sufficient to show that he faces an active threat of deportation at this time. However, given that we are satisfied that the defendant received proper immigration warnings, as required by the statute, that argument is irrelevant. Moreover, even if the statutory warning given was somehow inadequate, the defendant's submission of the ICE memo, without additional evidence that he actually is facing the prospect of deportation, would have been insufficient. "Where the defendant claims that he faces a risk of deportation, we construe the statute to require that relief be available only where the defendant shows either that the Federal government has taken some step toward deporting him or that its express written policy calls for the initiation of deportation proceedings against him." Commonwealth v. Grannum, 457 Mass. 128, 136 (2010). "This standard is appropriate where the immigration consequence is deportation because, as the [ICE] memorandum makes clear, far more noncitizens are deportable than ICE has the resources to deport, so the risk of deportation is hypothetical even for a noncitizen who is deportable until there is evidence that ICE has decided or will decide to initiate deportation proceedings." Commonwealth v. Valdez, 475 Mass. 178, 184 (2016). As a result, we agree with the judge that the defendant's submission was insufficient.

Order denying motion for new trial affirmed.

      "While the statute as worded applies only to 'a plea of guilty or nolo contendere,' [G. L. c. 278, § 29D, the court has] long held that it also applies to a defendant's admission to sufficient facts to warrant a finding of guilty.... [The court] did so because such admissions are, in many respects, 'the functional equivalent of a guilty plea.' " Villalobos, supra, quoting from Commonwealth v. Mahadeo, 397 Mass. 314, 316 (1986). In addition, the court agreed that, "under [then] current immigration law, the warning specified by the statute [was] inadequate, and even potentially misleading." Id. at 803. Nonetheless, the court concluded that it was "bound by the terms of the statute, ... [and that] [t]he immigration consequences resulting from disposition of a criminal charge are 'collateral and contingent consequences of a plea, and, but for G. L. c. 278, § 29D, ... there would be no obligation on a judge to warn or inform the defendant of such consequences in order to render the plea a voluntary and intelligent one.' Commonwealth v. Hason, 27 Mass. App. Ct. 840, 843 (1989)." Id. at 804.

      Because the transcript of the colloquy is available for our review, the tender of plea form, the "green sheet," included in this record does not control our analysis. Compare Commonwealth v. Hilaire, 437 Mass. 809, 818 (2002) (in the event inadequate warnings are given, "the preprinted form does not, by itself, fulfill the statutory command of G. L. c. 278, § 29D," to cure the defect). Contrast Commonwealth v. Marques, 84 Mass. App. Ct. 203, 205-206 (2013) (no transcript of the plea colloquy was available; thus, reversal was based on the outdated language contained in the green sheet). Moreover, we note that here, the green sheet signed by the defendant at the time of the plea in fact included the required language confirming that the defendant had decided to "plead guilty, or admit to sufficient facts, freely and voluntarily upon the conditions which [he had] tendered in [s]ection I. [His] guilty plea or admission [was] not the result of force or threats, promises or other assurances."


text:
    COMMONWEALTH v. Nakiba T. BROWNE.
    17-P-760
    Appeals Court of Massachusetts.
    Entered: March 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this consolidated appeal, the defendant, Nakiba Browne, appeals from his convictions of manufacturing heroin, subsequent offense, in violation of G. L. c. 94C, § 32(b ), and manufacturing cocaine, subsequent offense, in violation of G. L. c. 94C, § 32A(d ) ; and from the denial of his motion for new trial. We affirm.

Background. On August 13, 2014, the police saw the defendant enter an apartment building in Pittsfield. The next day, the police saw numerous individuals go into and out of the building, staying only a few minutes at time. On or about September 15, 2014, the police again saw the defendant near the same building.

On September 19, 2014, at roughly 5:35 A.M. , the police executed a search warrant. After the police knocked on the door of the apartment and announced their presence, the defendant opened the door holding a cellular telephone. The defendant was the only person in the apartment at the time. While searching the apartment, the police found wax baggies, a notebook with a powder residue on it, a zip lock baggie containing a powder residue, small rubber bands, a razor blade, rolls of scotch tape, a scale and plate containing powder residue, and $3,946 in cash. The powder on the plate and scale tested positive for heroin and cocaine, respectively, while the residues in the baggie and on the notebook tested negative for controlled substances. One officer testified that during booking the defendant said he lived at the apartment.

1. Motion for new trial. The defendant claims that trial counsel was ineffective because he failed to (a) adequately investigate the Commonwealth's scientific evidence; (b) present evidence that the defendant did not live at the apartment where the drug residues were found; and (c) notify the judge that the defendant saw a juror sleeping.

To establish ineffective assistance of counsel, the defendant bears the burden of showing "that there has been a 'serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,' and that counsel's poor performance 'likely deprived the defendant of an otherwise available, substantial ground of defence.' " Commonwealth v. Millien, 474 Mass. 417, 429-430 (2016), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In reviewing the judge's denial of the defendant's motion for new trial, we look to see whether the judge committed "a significant error of law or other abuse of discretion." Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting from Commonwealth v. Forte, 469 Mass. 469, 488 (2014). We show particular "deference to the action of a motion judge who[, as here,] was also the trial judge." Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

a. Drug file. The defendant maintains that trial counsel failed to conduct a thorough investigation of the Commonwealth's scientific evidence, because he did not request a copy of the drug analysis file or chain of custody documentation, nor did he hire a forensic expert to review the lab results. Had he done so, the defendant claims, he might have seen that both the plate and scale initially tested negative for controlled substances, and that only after "the chemist ... altered the instrumental method" were trace levels of controlled substances identified. This information, the defendant contends, could and should have been employed to more substantially undermine the test's reliability when cross-examining the Commonwealth's chemist.

Passing the question whether the failure to obtain this file fell below that which would be expected of an ordinary fallible lawyer, the defendant has failed to demonstrate prejudice. Where a defendant is claiming that "counsel was ineffective for failing to present an available ground of defense, that defense is 'substantial' for Saferian purposes where we have a serious doubt whether the jury verdict would have been the same had the defense been presented." Millien, 474 Mass. at 432.

The defendant has made no showing that any alteration of the method used to test the powder residues was improper, or that there was any defect in the chain of custody. Further, as the judge noted, the defendant's forensic chemistry consultant reached no definitive conclusions as to whether these issues, if explored more fully by defense counsel, would have affected the test results. Thus, the defendant has not shown that any failure by counsel "likely deprived [him] of an otherwise available, substantial ground of defence." Id. at 430, quoting from Saferian, 366 Mass. at 96.

b. Failure to call witness. The defendant also claims that trial counsel's decision not to call the defendant's girl friend as a witness to testify that the two lived together in Boston undercut his defense to the Commonwealth's theory of constructive possession.

Trial counsel averred that he spoke with the defendant's girl friend "personally," but did not call her as a witness. "The decision to call a witness is a tactical one." Commonwealth v. Morales, 453 Mass. 40, 48 (2009). "An attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made." Commonwealth v. Hudson, 446 Mass. 709, 716 (2006), quoting from Commonwealth v. Martin, 427 Mass. 816, 822 (1998). Trial counsel stated in his opening and argued in his closing that the defendant was not connected to the apartment. He cross-examined the Pittsfield police detective about the lack of evidence connecting the defendant to the apartment. The defendant's license listed a Boston address, but the address was not the girl friend's address. We cannot say that counsel's decision not to call the defendant's girl friend to testify was "manifestly unreasonable" when made. Morales, supra at 48-49.

c. Sleeping juror. At trial, both the prosecutor and defense counsel brought to the court's attention the fact that Juror 29 had been sleeping; by agreement of the parties Juror 29 was made an alternate. In an affidavit submitted with his motion for new trial, the defendant claimed for the first time that he saw Juror 37 sleeping during trial as well, and informed counsel. Trial counsel filed an affidavit which stated that the defendant told him that Juror 29 was sleeping, but counsel's affidavit was silent as to Juror 37. The judge did not abuse his discretion in declining to credit the defendant's affidavit. See Commonwealth v. McWilliams, 473 Mass. 606, 621 (2016).

2. Direct appeal. a. Substitute chemist. The defendant claims that his confrontation rights under the Sixth Amendment to the United States Constitution were violated when the Commonwealth's expert testified to the results of a test conducted by another chemist. For the first time on appeal, he further contends that trial counsel's failure to object to this testimony constituted ineffective assistance of counsel. In reviewing these claims, we examine whether any error gave rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 296 (2002) ("[W]hen a defendant alleges that his failure to preserve an issue for appeal stems from ineffective assistance of counsel ..., we do not evaluate the ineffectiveness claim separately[, but i]f we determine that an error has been committed, we ask whether it gives rise to a substantial risk of a miscarriage of justice"); Commonwealth v. Foley, 445 Mass. 1001, 1001-1002 (2005).

To the extent that the Commonwealth's expert testified directly to the data, including test results, and the drugs' weight, or lack thereof, this testimony was error. See Commonwealth v. Grady, 474 Mass. 715, 716 (2016), citing Commonwealth v. Greineder, 464 Mass. 580, 586-587, cert. denied, 134 S. Ct. 166 (2013) ("A substitute analyst may testify to his or her own opinion, but not, on direct examination, to the original analyst's test results"). However, the expert disclosed that she did not test the items herself. The fact that there was no weighable amount of drugs was a fact favorable to the defense, a fact that defense counsel drove home in his cross-examination and closing argument. Counsel used the residue evidence to argue that the results were the product of sample contamination and machine error. For these reasons, the expert's testimony does not give us "serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. Azar, 435 Mass. 675, 687 (2002).

b. Cumulative error. The defendant contends that "cumulative errors fatally infected the judgment of conviction." We have largely found no merit to the defendant's claims, but where we have found two possibilities of error, we are confident that taken together, they did not result in a substantial risk of a miscarriage of justice. Contrast Commonwealth v. Cancel, 394 Mass. 567, 576 (1985).

c. Jury waiver. Lastly, the defendant maintains that because he did not sign a jury waiver form when pleading guilty to the subsequent offense portions of both indictments, his guilty pleas should be rendered invalid. In Commonwealth v. Hubbard, 457 Mass. 24, 25 (2010), the Supreme Judicial Court plainly stated that "a written jury trial waiver is not required to enter a valid guilty plea." Moreover, the defendant acknowledges that the judge properly conducted a plea colloquy. The guilty pleas were validly made.

Judgments affirmed.

Order denying motion for new trial affirmed.

      The judge did not err in denying the request for an evidentiary hearing, because the defendant did not raise a "substantial issue" warranting such a hearing. Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015).

      The prosecutor asked the expert, "[D]o you recall the quantity as far as what was on the scale?" She responded, "It was considered a residue, no weighable amount." The prosecutor also asked the expert, "What was the data for item two?" to which the expert responded, "Item two was cocaine."

      During the colloquy the judge expressly stated, "[Y]ou have the right to a fair and impartial trial before either a [j]udge or a jury to determine ... whether you are a subsequent offender. By pleading guilty to that, you are giving up those rights." The judge then asked if the defendant understood this, to which the defendant responded that he did.


text:
    George PETERSON v. Roberta GOLDEN & another.
    16-P-1258
    Appeals Court of Massachusetts.
    Entered: March 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Peter Poulos, individually and as trustee of the Sunshine Trust.

   The defendants, Roberta Golden and Peter Poulos, appeal from a judgment against them, after a jury-waived trial, on plaintiff George Peterson's claims for breach of contract, unjust enrichment, and declaratory relief. They also appeal from orders denying two postjudgment orders. The defendants argue that the judge's refusal to recuse himself, denial of their motion for involuntary dismissal or new trial, and denial of their motion for lis pendens was error. We affirm.

Briefly, the judge found as follows. In an effort to help his friends, Golden and Poulos, out of financial difficulties, Peterson, in March of 2003, agreed to accept ownership of the defendants' property in Framingham, which at the time was subject to a mortgage requiring monthly payments by the defendants of $6,000. The conveyance to Peterson would permit him to obtain financing on the property to pay off existing debts on the property. The defendants would continue to live at the property, and Poulos would pay the mortgage obtained by Peterson. The defendants failed to make the payments over the course of many years, and Peterson filed this action for breach of contract and unjust enrichment. He also sought a declaration that he was the outright owner of the Framingham property.

The judge concluded that Poulos, who signed the agreement to transfer the property, had breached the contract by failing to make payments on the mortgage, forcing Peterson to do so over the course of many years. Because Golden was not a party to the contract with Peterson, the judge ruled that Golden could not be in breach, but concluded that she was unjustly enriched by residing at the property rent free for many years. The judge rejected the defendants' counterclaims and requests that the amounts owed Peterson be offset by amounts claimed by Golden, who was an attorney, for legal work done by her in connection with another coventure the parties had been involved in.

1. Recusal. The defendants claim that the judge abused his discretion when he denied their motion for recusal. During the trial, the judge discovered that Golden had been suspended from the practice of law in 2002. Upon learning this the judge notified the parties that Golden's bar discipline may have occurred during his tenure as vice chair of the Board of Bar Overseers (board). The judge indicated he had no memory of Golden or the proceedings against her. Nonetheless, he offered to recuse himself if the parties requested that he do so. All parties declined the judge's offer to recuse himself and the trial proceeded. The next day, Golden's attorney made a motion for the judge to recuse himself. The motion was denied. This issue arose again in one of the defendants' postjudgment motions. In his order on that motion, the judge indicated, in addition to the reasons stated by him earlier in the proceedings, that he had reviewed Golden's disciplinary proceeding to confirm he had not been involved and found that his term on the board had expired by the time Golden's disciplinary action reached the board.

The judge's decision not to recuse himself is reviewable for abuse of discretion. See Commonwealth v. Adkinson, 442 Mass. 410, 415 (2004). "The determination of recusal is left to the judge's sound discretion." Avelino-Wright v. Wright, 51 Mass. App. Ct. 1, 8 (2001). Here, the judge properly determined that he was free of bias or prejudice in the case. The judge informed the parties that he had no knowledge of anything material to Golden's disciplinary matter. Further, the judge's ruling on the defendants' postjudgment motion demonstrated that he also objectively evaluated whether his impartiality might reasonably be questioned and determined that it could not. See Lena v. Commonwealth, 369 Mass. 571, 575 (1976). We discern no error or abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

2. Postjudgment motion for involuntary dismissal and/or new trial. Next, the defendants argue that the judge erred in denying their postjudgment motion for involuntary dismissal and/or for a new trial on the ground that the agreement between the parties was an illegal contract and, accordingly, void. We agree with Peterson's argument that the issue was waived, as illegality of the contract was neither pleaded nor raised at the trial. See O'Donnell v. Bane, 385 Mass. 114, 116 (1982). Further, contrary to the assertion in the defendants' brief, the judge did not find that the contract was illegal.

3. Lis pendens. The defendants also filed a separate notice of appeal from the denial of their postjudgment motion for approval of a memorandum of lis pendens. We find the defendants' motion defective for failure to comply with the requirements of the lis pendens statute, G. L. c. 184, § 15. See DeCroteau v. DeCroteau, 90 Mass. App. Ct. 903, 906 (2016). ,

Judgment affirmed.

Order, entered March 5, 2013, denying motion for involuntary dismissal and/or new trial, affirmed.

Order, entered February 26, 2014, denying motion for approval of memorandum of lis pendens, affirmed.

      The defendants presented no argument on appeal on the issue of recusal as a grounds for allowing their motion for new trial. Therefore that argument is waived. See Mass.R.A.P. 16 (a)(4), as amended, 367 Mass. 921 (1975).

      The judge's findings stated: "It could be said that the Agreement was an illegal contract in that its execution required Washington Mutual to be misled into believing that the parties were engaged in a true sale of the Framingham property." The judge then indicated he would not refuse to enforce the agreement. Cf. Gleason v. Mann, 312 Mass. 420, 422 (1942) (consideration of unpleaded claim of illegality allowed when defendant shows contract is "inherently wrongful or which is violative of some fundamental principle of public policy").

      Even considering the defendants' verified counterclaims as part of the motion for lis pendens, we discern no abuse of discretion in the judge's denial in light of his findings and judgment after trial. See G. L. c. 184, § 16.

      Peterson's request for attorney's fees is denied.


text:
    Melissa A. JUAREZ v. U.S. BANK NATIONAL ASSOCIATION, trustee, & others.
    17-P-310
    Appeals Court of Massachusetts.
    Entered: March 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      On behalf of the holders of the Asset Backed Securities Corporation, Home-Equity Loan Trust, Series NC-2005-HE8, Asset Backed Pass-Through Certificates, Series NC 2005-HE8.

      Select Portfolio Servicing, Inc. (SPS), New Century Mortgage Corporation, Christopher Fencer, and Jacqueline M. Fencer.

   In this postforeclosure action, the plaintiff, Melissa A. Juarez, appeals from the judgment entered in favor of the defendants on their motions for summary judgment. We affirm.

Background. On August 5, 2005, Juarez signed a promissory note (note) to New Century Mortgage Corporation (New Century) on real property in the Dorchester section of Boston and granted a mortgage on the property. New Century endorsed the note in blank. On October 28, 2005, New Century and NC Capital Corporation (NC Capital) entered into a reconstituted servicing agreement with DLJ Mortgage Capital, Inc. (DLJ), and Asset Backed Securities Corporation (ABSC). The agreement provided that NC Capital had sold, DLJ had purchased, and New Century agreed to service certain loans. It further provided that DLJ intended to sell those loans to ABSC, which planned to deposit the loans in a trust pursuant to a pooling and servicing agreement (PSA). The PSA was executed on October 28, 2005, with an effective date of October 1, 2005. The Juarez loan was assigned and transferred to the trust in accordance with the PSA. On November 14, 2005, New Century notified Juarez that the servicing of her mortgage was being transferred to SPS. In 2007, Juarez defaulted on the note and mortgage and failed to cure the default after notice. On June 17, 2008, U.S. Bank National Association (U.S. Bank) notified Juarez that it intended to foreclose on the Dorchester property. The property was sold at a foreclosure sale on July 22, 2008, to U.S. Bank. Thereafter, U.S. Bank sold the property to Christopher and Jacqueline Fencer (Fencers).

Procedural history. Juarez filed a complaint in the Superior Court, which was subsequently amended, against U.S. Bank and SPS. These defendants removed the case to the United States District Court for the District of Massachusetts based on diversity of citizenship. Juarez's complaint was dismissed on the defendants' motions and Juarez appealed. The United States Court of Appeals for the First Circuit reversed in part and affirmed in part. Juarez v. Select Portfolio Servicing, Inc., 708 F.3d 269 (1st Cir. 2013). So much of Juarez's complaint as alleged violations of G. L. c. 244, § 14 (lack of power of sale), was reinstated. The dismissal of Juarez's fraud and G. L. c. 93A claims was affirmed as insufficiently pleaded, but the court stated that the complaint could be amended. The dismissal of the claim of violation of G. L. c. 244, § 2 (failure to make proper entry), was affirmed.

On remand, Juarez filed a second amended complaint and added the Fencers as defendants. The case was remanded to the Superior Court, as the addition of the Fencers divested the United States District Court of subject matter jurisdiction. The Fencers filed counterclaims against Juarez and cross claims against U.S. Bank. U.S. Bank and SPS filed a motion for summary judgment as to all counts against them. The Fencers filed a motion for summary judgment on certain of their counterclaims against Juarez. Juarez filed an opposition to both motions, contending that she is entitled to judgment as a matter of law. After hearing, a judge of the Superior Court allowed the defendants' motions, and judgment entered accordingly. The judgment declares that U.S. Bank and SPS had standing as a real party in interest as the owner of Juarez's note under G. L. c. 106 and to enforce Juarez's mortgage, that the foreclosure auction was not void ab initio, and that title and possession of the property will not be returned to Juarez. The judgment further declares that the sale to the Fencers was not void ab initio and that the Fencers hold title to the property free and clear of any adverse claims by Juarez.

Discussion. On appeal, "[w]e review a grant of summary judgment de novo." Miller v. Cotter, 448 Mass. 671, 676 (2007). We look to the summary judgment record to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).

Juarez primarily contends that U.S. Bank lacked standing to enforce the note and mortgage when it exercised the power of sale because it was not the lawful holder. We disagree. As was the case in U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637 (2011), U.S. Bank was not the original mortgagee to whom Juarez granted the power of sale. Thus, U.S. Bank would only have the authority to exercise the power of sale if it was the assignee of the mortgage at the time of the notice of sale and the subsequent foreclosure sale. Id. at 648. U.S. Bank contends that it had the authority to foreclose as the assignee of the original mortgagee, New Century. Juarez disputes that U.S. Bank provided evidence of a complete chain of assignments. Specifically, she contends there is a gap between New Century and ABSC. However, the reconstituted servicing agreement incorporates the PSA and thus is sufficient to show a chain of assignment from New Century (NC Capital), to DLJ, to ABSC, to the trust.

Juarez next claims the assignment of the note to the trust took place prior to the notice of sale and subsequent foreclosure sale. This claim fails, as the executed PSA shows the mortgage and note, identified by the unique number assigned to the Juarez mortgage, was part of the assets transferred to the trust in 2005. This evidence suffices to establish that U.S. Bank was the holder of the mortgage prior to the notice of sale and subsequent foreclosure sale. Id. at 651. There is no genuine issue of material fact as to U.S. Bank's right to foreclose.

Juarez also contends that U.S. Bank did not hold the note at the time of the foreclosure sale and thus under the holding of Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569 (2012), she is entitled to relief. Eaton, which was decided in 2012, provides that, prospectively, a foreclosing mortgagee is required to hold the note at the time of the foreclosure sale. Id. at 588-589. Thereafter, Eaton was given limited retroactive application to cases pending on appeal when it was decided. Galiastro v. Mortgage Electronic Registration Sys., Inc., 467 Mass. 160, 167 (2014). As the Fencers were not named as defendants when the case was pending in the First Circuit, Juarez cannot benefit from the limited retroactive application of Eaton. However, even if Juarez could apply the holding of Galiastro, the undisputed evidence is that U.S. Bank in fact was the holder of the note at the time of the foreclosure.

Juarez fares no better on her fraud and G. L. c. 93A claims. It is uncontested that Juarez defaulted on her mortgage and note. Regardless of who held the mortgage and note, Juarez is unable to demonstrate that she relied on any statement by U.S. Bank or SPS that caused her harm. Moreover, there is no evidence that U.S. Bank or SPS engaged in unfair or deceptive business practices.

Judgment affirmed.

      New Century filed for bankruptcy in April, 2007. While Juarez relies, in part, on the bankruptcy as the basis for some of her claims, she acknowledges she has no interest in those proceedings.

      The PSA was dated October 1, 2005, and included ABSC as the depositor, SPS as the servicer, DLJ as the seller, Wells Fargo Bank, N.A. as the master servicer, U.S. Bank National Association as trustee, and MortgageRamp, Inc., as the loan performance advisor.

      The Juarez mortgage is identified on the mortgage loan schedule as 1003148105.

      U.S. Bank recorded a mortgage foreclosure deed on October 22, 2008. On October 29, 2008, a corporate assignment of mortgage of the Juarez note and mortgage was recorded. New Century, by its attorney in fact, SPS, was the assignor, and U.S. Bank, as trustee, was the assignee. The assignment was executed and notarized on October 16, 2008, with a date of assignment of June 13, 2007.

      The second amended complaint sought a declaration that U.S. Bank and SPS did not have standing as a real party in interest as the owner of the note, pursuant to G. L. c. 106; a declaration that U.S. Bank and SPS did not have standing as a real party in interest to enforce Juarez's security instrument; a declaration that U.S. Bank's and SPS's foreclosure auction sale was void ab initio; a declaration that U.S. Bank's sale of the property to the Fencers was void ab initio; and a declaration that title and possession of the property be returned to Juarez. Juarez also sought to recover on claims of use and occupancy against the Fencers; slander of title against the Fencers; violation of G. L. c. 93A against U.S. Bank and SPS; civil conspiracy against U.S. Bank and SPS; and fraud against U.S. Bank and SPS.

      The counterclaims sought a declaration that the Fencers hold title to the property free and clear of any adverse claims by Juarez; to quiet title pursuant to G. L. c. 244, §§ 6 -10 ; relief pursuant to G. L. c. 244, §§ 1 -2 ; to recover on the theory of unjust enrichment; an equitable assignment of the note and mortgage; an equitable accounting. The counterclaims also included claims pursuant to G. L. c. 244, §§ 3 -12. The cross claims against U.S. Bank are for declaratory judgment, breach of quitclaim covenants, equitable assignment of the note and mortgage, and equitable accounting.

      That the assignment was not recorded until after the foreclosure sale is of no moment. See Ibanez, supra at 654.

      Juarez raises twenty-seven issues in her brief. To the extent that we do not address the other arguments she raises, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).