Commonwealth v. Shilo M. Hearn.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-1101
COMMONWEALTH
vs.
SHILO M. HEARN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In late 2018 and early 2019, the defendant, Shilo M. Hearn,
was charged in the District Court for two separate incidents
involving her live-in boyfriend. Specifically, on December 3,
2018, the defendant was charged with assault and battery on a
family or household member and assault and battery by means of a
dangerous weapon (the 2018 case). On January 7, 2019, the
defendant was charged with assault and battery on a family or
household member, assault and battery by means of a dangerous
weapon, disturbing the peace, and disorderly conduct (the 2019
case). On February 12, 2019, the defendant pleaded guilty in
the District Court on both cases.1 In October 2020, the
defendant filed a motion to withdraw her guilty plea. On
1 The disturbing the peace and disorderly conduct counts were
dismissed at the Commonwealth's request at the plea hearing.
November 18, 2020, the motion judge, who also presided at the
2019 plea hearing, denied the motion without a hearing. This
appeal ensued. We affirm.
Background. In brief, the 2018 case involved an argument
between the defendant and her boyfriend wherein the defendant
"picked up a kitchen knife and began swinging the knife at" her
boyfriend. As a struggle ensued, the defendant grabbed her
boyfriend by his tank top "and pulled, stretching it out. He
was cut by the knife on the right side of his chest near his
shoulder, as well as on the hand and he was grabbed by [the
defendant]." As for the 2019 case, the defendant and her
boyfriend were again involved in an argument during which the
defendant "grabbed a wine bottle and struck [the boyfriend] in
the head with it."2
Following the 2019 incident, a judge incarcerated the
defendant for violating her pretrial conditions of release.3 On
February 12, 2019, the boyfriend did not appear for the
scheduled trial. The judge issued a warrant for the boyfriend's
arrest, but later recalled the warrant because local police
2 The defendant was charged with both assault and battery on a
family or household member and assault and battery by means of a
dangerous weapon for each incident. As the defendant
acknowledges, these charges are not duplicative where each
charge contains an element that the other does not. See
Commonwealth v. Wolinski, 431 Mass. 228, 238-239 (2000).
3 The judge who incarcerated the defendant for violating the
terms of release was not the plea or motion judge.
2
officers could not locate or serve him because of bad weather
conditions and other pressing matters. That same day, the
parties filed an unagreed upon plea recommendation to jointly
resolve the 2018 and 2019 cases. The defendant requested a
continuance without a finding as to all counts, while the
Commonwealth recommended convictions with a sentence of six
months of incarceration in the house of correction, with thirty-
six days to serve and the balance suspended for one year on all
charges (except the disorderly conduct and disturbing the peace
counts4). The judge rejected both recommendations, and instead
offered to continue the two felony counts of assault and battery
by means of a dangerous weapon without a finding and impose
convictions on the two counts of assault and battery on a family
or household member. Specifically, the judge said that he would
not continue all counts without a finding in light of the
defendant's prior criminal record and the serious nature of the
charges. For the convictions, he offered to impose a split
sentence of one year of incarceration in the house of
correction, with thirty-six days to serve and the balance
suspended for twelve months. Insofar as the defendant had
already served thirty-six days for the violation of her terms of
release, the defendant would be released from incarceration
4 See note 1, supra.
3
forthwith if she accepted the plea terms. Following a full
colloquy, including an explanation as to the consequences of any
violation of probation or terms of the plea, the defendant
accepted the terms offered by the judge.
Discussion. "A motion to withdraw a guilty plea is treated
as a motion for a new trial pursuant to Mass. R. Crim. P. 30
(b)." Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015),
quoting Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014).
Motions for a new trial are committed to the sound discretion of
the judge, Commonwealth v. Moore, 408 Mass. 117, 125 (1990), and
"are granted only in extraordinary circumstances." Commonwealth
v. Comita, 441 Mass. 86, 93 (2004). "Reversal for abuse of
discretion is particularly rare where the judge acting on the
motion was also the trial judge." Commonwealth v. Schand, 420
Mass. 783, 787 (1995). See Commonwealth v. Williams, 71 Mass.
App. Ct. 348, 354 (2008) ("as the motion judge was also the plea
judge, we accord substantial deference to his decision to deny
the motion"). "A judge may make the ruling based solely on the
affidavits and must hold an evidentiary hearing only if the
affidavits or the motion itself raises a 'substantial issue'
that is supported by a 'substantial evidentiary showing.'"
Commonwealth v. Scott, 467 Mass. 336, 344 (2014), quoting
Commonwealth v. Stewart, 383 Mass. 253, 260 (1981).
4
Here, the defendant contends that her plea was not knowing,
voluntary, or intelligent because (1) she did not know or
understand the elements of the offenses to which she pleaded
guilty, i.e., the counts of assault and battery on a family or
household member; and (2) she was unaware of the maximum
sentence for the disposition at issue or for each of the charges
individually. In her affidavit in support of the motion to
withdraw guilty plea, the defendant averred that (1) she thought
that she "was going to get, all of [her] charges continued
without a finding"; (2) she did not understand that the guilty
pleas would stay on her record forever and that she would "get a
longer sentence for any charges in the future"; and (3) in
speaking with her plea attorney, she did "not remember
discussing the maximum sentence for each of the charges against
[her] . . . or the possible consequences if [she] was found in
violation of probation."5 Her claims are unavailing.
Whether a plea is intelligently and voluntarily made is
confirmed in the ordinary course by the plea judge during the
required colloquy. See Commonwealth v. Correa, 43 Mass. App.
Ct. 714, 716-717 (1997). Here, the lengthy and detailed plea
5 The defendant's plea counsel did not file an affidavit in
support of the motion to withdraw guilty plea. According to the
defendant's appellate counsel's affidavit, plea counsel told her
that "he had fully advised [the defendant] but refused to sign
an affidavit."
5
colloquy shows that the plea judge reviewed the waiver of
rights, the charges, and the terms of the plea deal with the
defendant. "A plea is made intelligently if (1) the judge
explain[s] to the defendant the elements of the crime; (2)
counsel represent[s] that [he] has explained to the defendant
the elements he admits by his plea; or (3) the defendant admits
to facts recited during the colloquy which constitute the
unexplained elements" (quotations and citation omitted).
Commonwealth v. Wentworth, 482 Mass. 664, 679 (2019).
Here, contrary to the defendant's claim, the record reveals
that the defendant admitted to facts recited during the colloquy
which constituted all the elements of the offense of assault and
battery on a household or family member.6 As to the 2018 case,
the prosecutor's recitation of facts stated that the defendant
grabbed the boyfriend by his tank top, cut him on the right side
of his chest with a knife, and grabbed him. The recitation of
facts further stated that the boyfriend and the defendant had a
"dating relationship" and that the assault and battery was made
upon a "family household member." These facts constituted the
elements of assault and battery on a household or family member,
see G. L. c. 265, § 13M, and the defendant agreed that the
Commonwealth's summary of events was "essentially what
6 See note 2, supra.
6
happened." As to the 2019 case, the prosecutor's recitation of
facts stated that the defendant and her boyfriend were "in a
dating relationship" and that she "grabbed a wine bottle and
struck him in the head with it." Here again, these facts
constituted the elements of assault and battery on a family or
household member, and the defendant agreed that the
Commonwealth's summary of events was "essentially what
happened." See generally Commonwealth v. Sherman, 451 Mass.
332, 335-338 (2008).
For similar reasons, we reject the defendant's contention
that she was unaware of the maximum sentence for the disposition
at issue. The judge advised the defendant that if she accepted
the plea terms, she would receive a guilty finding on the two
counts of assault and battery on a family or household member
and receive a sentence of "[twelve] months in the house of
correction, [thirty-six] days to serve, that would be deemed to
have [been served], the balance suspended for [twelve] months."
He further advised, with respect to the "continuance without a
finding felonies" on the two assault and battery by means of a
dangerous weapon counts, any violation of the terms of the
continuance could result in her being "sentenced up to two and a
half years out of this Court." The judge further stated that,
in the event of any violations of the terms of probation with
respect to the assault and battery on a household or family
7
member convictions, "those [sentences] may be imposed and you
could be served the balance of those as [twelve] months."7 When
asked if she understood, the defendant told the judge, "I do."
In short, the judge did explain the maximum sentences connected
to the disposition at issue, and his explanations conformed with
Mass. R. Crim. P. 12 (c) (3), as amended, 489 Mass. 1501 (2022),
as well as our case law. See Sherman, 451 Mass. at 341-342.8
Accordingly, the judge did not abuse his discretion in denying
the defendant's motion to withdraw her guilty plea.
Order denying motion to
withdraw guilty plea
affirmed.
By the Court (Neyman, Grant &
Hershfang, JJ.9),
Clerk
Entered: July 7, 2023.
7 The judge also advised the defendant that "if you comply with
these terms and there's no other issues at the end of the term
of your probation, you'll be terminated and discharged from that
probation."
8 We note that the defendant completed her probation without any
violations and thus was not exposed to any of the maximum
sentences on any of the charges in the present case.
9 The panelists are listed in order of seniority.
8