This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Joseph Lindsey, appeals from the order denying a motion to vacate his conviction and for a new trial. The defendant filed the motion on January 28, 2014. The defendant's revised sentence was imposed in 1999. The defendant asserts that his motion should have been granted because he never waived his right to a jury trial in 1999 prior to his sentence being revised. We affirm.
The defendant was convicted of assault and battery by means of a dangerous weapon after a bench trial in 1992. At the time, the de novo trial system was in place, and the defendant exercised his right to a de novo appeal. The defendant failed to appear on the de novo pretrial conference date. A default was entered on the docket, but the warrant did not issue until after the assigned trial date had passed. There is no assertion that the defendant was present on that later day. The defendant was not returned to court until September 7, 1999. On September 7, 1999, the following notation on the docket was entered: " atty Cheryl Dennis appt-Comm. 278-24 motion denied-sentence revised to 18 months HC ss 9-7-2001 (500 hrs Comm Service no cash alternative)." The Commonwealth's motion that was in front of the judge requested both " that the Defendant's right to a trial by a Jury of Six Persons be deemed waived and that the sentence imposed in the District Court, after a finding of guilty in that court, be reimposed."
The defendant argues that this notation on the docket indicates that the default against the defendant was lifted. We disagree because the docket entry does not clearly indicate that the default was lifted. There were two requests set forth in the Commonwealth's motion, and the docket does not indicate whether both were denied. If the judge had determined, in his discretion, that it was a " solid" default in 1992, the defendant would then have waived his right to a jury trial by defaulting and the judge would not have lifted the default in 1999. See Commonwealth v. Bartlett, 374 Mass. 744, 747-748, 374 N.E.2d 1203 (1978), and cases cited; Commonwealth v. Francis, 374 Mass. 750, 759, 374 N.E.2d 1207 (1978).
Furthermore, even assuming that the docket is clear that the default was lifted, the motion judge here did not abuse his discretion in denying this motion because the defendant did not meet his burden to show that he did not waive his right to a jury trial in 1999. The presumption of regularity does apply in this case. See Commonwealth v. Hoyle, 67 Mass.App.Ct. 10, 14-15, 851 N.E.2d 469 (2006) (" 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" ). See also Commonwealth v. Wheeler, 52 Mass.App.Ct. 631, 637-638, 756 N.E.2d 1 (2001). The defendant submitted his own affidavit stating that he was not advised of his right to a jury trial in 1999, did not waive that right, and he " do[es] not recall saying anything in court at that time." The motion judge " is not required to credit assertions in affidavits submitted in support of a motion for a new trial and may evaluate them in light of factors pertinent to credibility, including bias, self-interest, and delay." Commonwealth v. Torres, 469 Mass. 398, 403, 14 N.E.3d 253 (2014), citing Commonwealth v. Grant, 426 Mass. 667, 673, 689 N.E.2d 1336 (1998). Aside from his affidavit, the defendant asserts that the lack of a notation on the docket also supports his contention that he did not waive his jury rights in 1999. Absent any other evidence and particularly where it is clear that the defendant was represented by counsel during the proceeding, and had accepted a revision of the original sentence, it was within the judge's discretion to conclude that the defendant did not meet his burden to produce reliable evidence rebutting the presumption of regularity.
Order denying motion for new trial affirmed.
Cohen, Green & Trainor, JJ.