Appeals Court Reinstates DV Conviction for ’08 Assault

Cites Judge’s “Abuse of Discretion” in Allowing Withdrawal of Plea

BOSTON, Nov. 27, 2012—The Massachusetts Appeals Court today reinstated a Charlestown man’s conviction for beating the mother of his child after a municipal court judge allowed the man to withdraw it in 2010, Suffolk County District Attorney Daniel F. Conley said.

The unpublished decision, released today, vacates the decision by Boston Municipal Court Judge Raymond Dougan, Jr., allowing CARLOS PENA (D.O.B. 12/11/62) to withdraw his May 7, 2009, admissions to assault and battery, assault and battery with a dangerous weapon, and two counts of threatening to commit a crime.

Judge Paul Leary, now retired, sentenced Pena on that date to two years in a house of correction with six months to serve and the balance suspended for two years, along with two years of probation; prosecutors had asked for a year behind bars and an additional year suspended for two years. Had Pena not pleaded guilty, Conley’s office was prepared to go to trial, with the victim and all witnesses ready to proceed.

As part of the plea, Pena signed a waiver of his right to a trial acknowledging that he understood that his guilty plea “may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization.” His attorney at the time similarly signed the sheet and acknowledged that she had “explained to the defendant the above-stated provisions regarding the defendant’s waiver of jury trial and other rights so as to enable the defendant to tender a plea of guilty  … knowingly, intelligently and voluntarily.”

Almost a full year after pleading guilty, however, Pena sought a hearing before Judge Dougan, filed a motion to withdraw his guilty plea, and claimed that his attorney at the time was ineffective for allegedly failing to inform him of immigration consequences related to his convictions.

Pena did not include an affidavit from that attorney. The judge did, however, accept an email in which she wrote to the court that she had no specific recollection of the 2009 plea but that she always advises clients of potential immigration issues arising out of a conviction.

“In this particular case what makes [me] believe that what Carlos said is untrue is the fact that he was facing charges involving domestic abuse,” the attorney wrote. “I know for a fact that cases involving domestic abuse are certainly not good for a non-citizen. I also know that the sentence that he received would certainly trigger some immigration consequences.”

Judge Dougan granted the defendant’s motion over prosecutors’ objections. Prosecutors further argued that he should vacate the order and abide by the Massachusetts Rules of Criminal Procedure, which allow that a judge may deny a motion to withdraw a guilty plea on filings alone, but may not grant such a motion without an evidentiary hearing at which both parties have an opportunity to call and cross-examine witnesses.

“In other words,” Justices Peter W. Agnes, Jr., Francis R. Fecteau, and Joseph A. Grasso, Jr., wrote in the three-page decision, “in denying a … motion a judge may discredit a defendant’s uncorroborated self-serving assertions, but in allowing a motion he may not credit them over the objection of the Commonwealth without giving the Commonwealth the opportunity for cross-examination to test those assertions.”

Dougan declined to hold such a hearing, and prosecutors appealed the decision to the Appeals Court, leading to today’s decision.

“As we hold that the defendant neither met his burden of alleging prejudice nor, at a minimum, raised a substantial issue warranting an evidentiary hearing on the issue, to have allowed the defendant to withdraw his guilty plea under these circumstances was an abuse of discretion,” the court wrote.

Conley urged victims of any crime, including domestic violence, to call 911 in an emergency. SafeLink, a statewide DV hotline, can be reached at 877-785-2020. SafeLink is answered by trained advocates 24 hours a day in English, Spanish, and Portuguese, as well as TTY at 877-521-2601. It also has the capacity to provide multilingual translation in more than 140 languages.

Assistant District Attorney Vincent DeMore prosecuted the case in the Boston Municipal Court. Assistant District Attorney Zachary Hillman of Conley’s Appellate Division argued the case before the Appeals Court.


All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.