Commonwealth v. Yardley Y.

• Decision Date: 29 January 2013
• Docket Number: SJC–11071.
• Citation: 982 N.E.2d 488,464 Mass. 223
• Parties: COMMONWEALTH v. YARDLEY Y., a juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

464 Mass. 223
982 N.E.2d 488

COMMONWEALTH
v.
YARDLEY Y., a juvenile.

SJC–11071.

Supreme Judicial Court of Massachusetts,
Hampshire.

Argued Oct. 1, 2012.
Decided Jan. 29, 2013.

[982 N.E.2d 489]

Barbara Kaban for the juvenile.

Steven Greenbaum, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.

IRELAND, C.J.

[464 Mass. 223]We granted the defendant's application for further appellate review to consider whether the Juvenile Court judge properly

[982 N.E.2d 490]

denied the defendant's motion for a new trial. The defendant sought to vacate his plea because he did not knowingly and voluntarily admit to sufficient facts where no interpreter was present during his plea colloquy and where he was denied effective assistance of counsel. The Appeals Court, in a [464 Mass. 224]memorandum and order issued pursuant to its rule 1:28, Commonwealth v. Yardley Y., 79 Mass.App.Ct. 1123, 2011 WL 2224900 (2011), affirmed the denial of the defendant's motion. Because the defendant did not provide sufficient evidence to rebut the presumption of regularity of his plea proceedings and did not demonstrate he was denied the effective assistance of counsel, we affirm the denial of the defendant's motion.

Facts and procedure. We present the facts as found by the judge, supplemented by uncontested facts in the record.

The defendant and his mother, Cambodian refugees and native Khmai speakers, came to the United States when the defendant was four years old.¹ In 1995, when the defendant was fourteen years old, he was living at a Buddhist monastery with Cambodian monks in Amherst, where Khmai, rather than English, was generally spoken. On August 2, 1995, a complaint issued from the Hampshire County Division of the Juvenile Court Department charging the defendant with assault and battery by means of a dangerous weapon and indecent assault and battery on a child under the age of fourteen.²

It appears that, related to these charges, the defendant's need for an interpreter was recognized. The docket shows that interpreters were ordered for certain court dates, although no entry on the docket indicates that interpreters were actually present when scheduled. Thus when the defendant's case was continued from September 12 to September 19, 1995, the docket shows that the judge rescheduled an interpreter for the new date.³

Ultimately, the defendant admitted to sufficient facts on [464 Mass. 225]October 17, 1995, and was placed on probation. The court's record of the defendant's plea colloquy is a stamp that states “Colloquy Given ______ Tender of Plea or Admission Form Filed and Waiver Signed” with the blank line left blank. The docket indicates an interpreter was ordered for the defendant's October 17, 1995, court date, as well as for the November 21, 1995, court date set for disposition.

In 1996, the defendant was committed to the Department of Youth Services (DYS) after he violated the terms of his probation. In 2009, the defendant, as an adult, sought to vacate his pleas, asserting that

[982 N.E.2d 491]

no interpreter had been present at his plea hearing, and therefore he was denied the assistance of his parent, and that his counsel did not provide effective assistance. In the affidavit that he submitted in support of his motion, the defendant stated that he did not understand that he was admitting to a sexual offense, did not know what a trial was, had spoken to his mother in court in Khmai, did not remember speaking to an attorney until the day of his plea, and did not remember an interpreter ever being in court with him and his mother.

The defendant's mother submitted an affidavit stating that, at the time of the defendant's plea colloquy, she did not read or write English. She also stated that no interpreter was present to help her during court proceedings, although “[t]here was someone translating for the other family ... but he would not help [her].” ⁴ The victim also submitted an affidavit.⁵ The defense attorney representing the defendant in 1995 did not provide an affidavit or other information about the specifics of the case.

As evidence he did not understand his guilty plea, the defendant included a 1996 report by DYS, as well as a 1996 educational report discussing his educational skills. The educational report [464 Mass. 226]states that his school attendance had been infrequent while he had lived in the United States, and that the defendant was “significantly below grade level” with “serious gaps in all subject matters.” The report also stated that the defendant's reading was weakest “in the areas of decoding and vocabulary ... when reading subject material” and that the defendant sometimes needed assistance with tasks that were at the fourth or fifth grade level.

After conducting a hearing, the judge, who had also been the plea judge, denied the defendant's motion. She found that the practice for recording the presence of interpreters was that an interpreter would be ordered, and proceedings would be continued if the interpreter was not there. She stated that the court has never documented and is not bound to document the presence of an interpreter. The judge also stated that, as a matter of practice, she adapts the colloquy given to juveniles to “about a sixth-grade level.”

The judge noted disparities in the affidavits concerning the presence of an interpreter, including the statement of the defendant's mother that someone in the court room was interpreting, but not for her. The judge had “a very hard time with the affidavits and relying on them to support [the defendant's] position.” The judge found that, based on the record and the affidavits, the defendant failed to prove he was not provided an interpreter, and therefore did not prove he lacked understanding or knowledge when he admitted to sufficient facts.

The defendant moved for reconsideration. At the hearing on that motion, the defendant introduced an affidavit from the chief financial officer of the Committee for Public Counsel Services (CPCS) stating that the organization's financial records indicate that counsel was appointed for the defendant in 1995. The records do not show, however, any payment for the defendant's representation. The affidavit also states there is no indication that CPCS

[982 N.E.2d 492]

paid for interpreter services for this case. The judge found that the missing financial accounting did not change the balance. The judge stated that the law presumes pleas are voluntary, and noted, as she had previously, that the affidavits demonstrated that there was someone in the court room interpreting during the plea proceedings. The Appeals Court affirmed [464 Mass. 227]the denial of the motion; however, the court acknowledged that one member of the panel raised concerns that the defendant did not receive the adult or parental guidance that our cases have indicated should be available when a child waives fundamental rights.

Discussion. A defendant may withdraw a guilty plea where the plea was not made freely and voluntarily. Commonwealth v. Sherman, 451 Mass. 332, 335, 885 N.E.2d 122 (2008), citing Boykin v. Alabama, 395 U.S. 238, 242–243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The appropriate method to challenge a plea is a motion for a new trial, which the judge has the discretion to allow or deny. Commonwealth v. Sherman, supra at 334, 885 N.E.2d 122. We review under an abuse of discretion standard. Commonwealth v. Burgos, 462 Mass. 53, 60, 965 N.E.2d 854 (2012).

When accepting a plea, a judge must be “satisfied that the plea [was] voluntary and that the defendant [understood] the nature of the charges.” Commonwealth v. Quinones, 414 Mass. 423, 431, 608 N.E.2d 724 (1993). This court has recognized that, in the context of rights under the Fifth Amendment to the United States Constitution, “juveniles frequently lack the capacity to appreciate the consequences of their actions and [the law] seeks to protect them from the possible consequences of their immaturity.”...