Former Catholic priest Paul R. Shanley was back in the news this week when his appeal from denial of his motion for a new trial following his 2005 conviction on sex abuse charges was accepted for further review by the Massachusetts Supreme Judicial Court. His motion, largely based upon the allegedly improper use of expert testimony regarding so-called “repressed memories,” raises some interesting issues, and I look forward to seeing how the SJC addresses them.

Since it’s not often that a motion for a new trial makes headlines, I thought that this would be a good time to address questions which I am often asked in connection with vacating convictions in Massachusetts. I should note up front that while practitioners typically refer to this process as a “motion for new trial,” these motions are also legally identical to motions to withdraw a guilty plea, and are often collectively referred to as “motions to vacate.” I will be using this last term throughout this post not only because it is somewhat simpler, but also because I like the sound of it.

What is a motion to vacate?

Rule 30(b) of the Massachusetts Rules of Criminal Procedure states that judges may vacate prior convictions “at any time” upon a showing that “justice may not have been done” in the prior proceedings. This includes convictions arising either from trials or guilty pleas.

If turning back the clock to rectify a situation in which “justice may not have been done” sounds like a job for Superman—or, if Mr. Kent is otherwise engaged, perhaps Matt Murdock—you can think of Rule 30(b) as a Massachusetts judge’s own personal phone booth. It bestows the courts with extraordinary powers, which is exactly why they generally choose to exercise them only in extraordinary circumstances.

How is a motion to vacate different from an appeal?

Motions to vacate differ from direct appeals in two significant ways:

1) Timing.  Notice of direct appeal from a criminal conviction must be brought within 30 days of the date of conviction, although late appeals may be permitted under certain circumstances. Under Rule 30(b), however, a motion to vacate a conviction may be brought “at any time.” It is not uncommon to see these motions brought decades or more after the original conviction, usually when the defendant is facing serious collateral consequences such as deportation or enhanced sentencing in a subsequent charge.

2) Content. New evidence may not be raised on direct appeal, as all claims made on appeal must be supported by the settled record in the trial court. A motion for new trial presents an opportunity to expand the record with information which did not appear in prior proceedings. This could be exculpatory (newly-available eyewitness testimony, new scientific evidence, etc.) or, more commonly, evidence as to elements of the trial (usually, but not always, attorney performance) which are not immediately apparent from the face of the record.

What does it take to vacate a conviction?

Grounds for a successful motion to vacate can vary widely, and you should consult an attorney who is experienced with these unique and highly technical motions if you believe that “justice may not have been done” in any criminal proceeding. Possible reasons for vacating convictions will depend entirely on the circumstances of your case, but they may include deficiencies in the plea hearing, problems at trial (including ineffective assistance of trial counsel), and/or newly-available exculpatory evidence.

Dude, I was totally high when I pled to that. Shouldn’t I get another chance?

Maybe, but probably not.

Judges are required to ask defendants a series of questions (known as the “plea colloquy”) under oath prior to accepting a plea to be sure that they haven’t used any drugs or alcohol that day and aren’t on any medication that would otherwise affect their judgment before a guilty plea may enter, and defendants are generally going to be stuck with the responses they provided at the time. Of course, the question itself isn’t especially useful: if you really were under the influence to a degree that would concern the court, you may not have been especially well-equipped to know whether or not your judgment was  impaired.  (Or, for that matter, that you were not actually engaged in a friendly conversation with, say, an affable black-robed porcupine about late-’70s modal jazz.)

You can see the problem here: if voluntary intoxication were proper grounds for withdrawing a guilty plea, our courts would be full of criminal defendants hopped up on their substances of choice hoping to be able to come back and get a better deal after the case was closed and the evidence disposed of.

That said, judges are obligated to determine that defendants are fully competent to enter a plea and know exactly what they are doing before accepting the plea and permitting it to become a conviction. Although I’m not aware of any reported Massachusetts case which has allowed a conviction to be vacated on these grounds, it is certainly possible that a judge who failed to notice a defendant’s state of obvious intoxication at the time of the plea would not be faulted for later permitting this plea to be withdrawn.

I am a foreign national who is about to be deported and permanently separated from my family in the U.S. because of an old, relatively minor, conviction. Can’t the judge consider this fact?

No. Although you can certainly mention it, Massachusetts courts are not simply permitted to explicitly take so-called “collateral consequences” into account when ruling on motions to vacate. And you wouldn’t want them to, anyway: No matter how the relevant state law defines it, immigration authorities will only consider a conviction to be officially vacated for their purposes if the record demonstrates that this decision was made on legal or Constitutional grounds. This is an unfortunate reality of our system, and only one more example of how it occasionally permits our laws to preclude the administration of justice.

However, this is not to say that it is not possible to clear a conviction when it is the only thing standing between you and your otherwise-lawful presence in the United States. In fact, there is sometimes an extra option available to those facing deportation for reopening an old plea that would not be available for U.S. citizens. You should consult an attorney immediately if you are currently facing immigration consequences from a criminal conviction.

How often are these motions granted?

Motions to vacate are, as they say, “disfavored.” There is generally a presumption in favor of the validity of any given conviction, and the burden is on the defendant to overcome this presumption. If this seems like a high standard, it is this way by design in favor of the basic principle that a functioning justice system requires some measure of finality in its criminal convictions.

This principle is especially true in regard to plea hearings in which criminal defendants have freely, knowingly, and voluntarily waived their Constitutional rights to have the evidence against them proven beyond a reasonable doubt and admitted their guilt. Given that any motion to withdraw such a plea must be decided by the same judge who originally accepted it, many judges will be skeptical of any claim that there was something wrong with the plea hearing.

This is not to say that it is impossible to win such motions, however, and I am proud to have been able to obtain favorable results on behalf of many of my clients.

Is vacating a conviction different from sealing/expunging a conviction?

Yes. Although Massachusetts has no provision for “expunging” a conviction in the way that other states permit,  an individual whose records have been  “sealed” by the court may truthfully inform anyone who needs to know that they do not have any criminal convictions. However, these records still technically exist, and may still be accessed by probation, immigration and other law enforcement authorities (although not potential employers, schools, etc.) for certain purposes. Also, records may not be sealed any sooner than 10 years after a misdemeanor conviction, or 15 years after a felony. (The Commonwealth has pretty much the harshest laws in the country in this area; as usual, I blame our theocratically-inclined forefathers.) If this time has already passed, however, sealing old convictions is still almost certainly going to be easier than vacating them.

Although vacating a conviction may ultimately remove it from one’s record entirely, a defendant may also be facing an entirely new set of problems once a motion to vacate is granted—more on which further below.

What happens after a motion to vacate is granted?

One of the most important questions that a defendant should ask himself and/or his attorney before filing a motion to vacate should not be “What if I lose this?”, but rather “What if I win?”

It is a common misconception that a “vacated” conviction is simply cleared from a defendant’s record with no further proceedings. While this may be true in some cases, it is often not quite so simple.

Once you have successfully litigated a motion to vacate, the case is treated as if your plea or trial had never occurred. So the good news is pretty good:  you get a chance for a new plea or trial. Of course, the bad news may also be that you… have a chance for a new plea or trial. Since prosecutors are understandably reluctant (or, in many cases, unable) to go forward with ancient cases in which documents, witnesses, and other evidence have become unavailable, your record may end up entirely cleared. If the conviction was fairly recent, however, the Commonwealth may be happy to offer you a new, substantially-similar plea bargain, or to proceed to re-try you.

Would you mind looking at my conviction to see if there’s anything that might be done to seal or vacate it?

Not at all! I am fully experienced and comfortable with these issues, and you are welcome to contact me any time to schedule a free consultation. If I feel that there is a reasonable possibility that your conviction may be sealed or vacated, it will be my pleasure to represent you in this matter.

Matt Cameron