motion without an evidentiary hearing in Massachusetts

2024To establish ineffective assistance, a defendant must show "serious incompetency, inefficiency, or inattention of counsel" that likely deprived the defendant "of an otherwise available, substantial ground of defense." Commonwealth v. Daley, 439 Mass. 558 , 569 n.8 (2003), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

1999Because the affidavits do raise a “substantial issue,” the trial judge abused her discretion by denying the motion without an evidentiary hearing. “[I]n a case like this, in the absence of a hearing followed by findings of fact, or of a stipulation of facts, it is not possible for an appellate court to know ‘whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer [and] whether it has likely deprived the defendant of an otherwise available, substantial ground

2024Like the decision on a motion for a new trial, the decision whether to hold an evidentiary hearing or to decide the motion based on affidavits and other documents "is left largely to the sound discretion of the judge." Commonwealth v. Toney, 385 Mass. 575, 579 (1982), quoting Commonwealth v. Stewart, 383 Mass. 253, 257 (1981).

1984See Commonwealth v. Toney, 385 Mass. 575, 580 (1982).

2024Like the decision on a motion for a new trial, the decision whether to hold an evidentiary hearing or to decide the motion based on affidavits and other documents "is left largely to the sound discretion of the judge." Commonwealth v. Toney, 385 Mass. 575, 579 (1982), quoting Commonwealth v. Stewart, 383 Mass. 253, 257 (1981).

2001A motion for a new trial is addressed to the sound discretion of the judge, Commonwealth v. Smith, 381 Mass. 141, 142 (1980), and the judge’s disposition will not be reversed unless it is manifestly unjust, Commonwealth v. Schand, 420 Mass. 783, 787 (1995), or unless the trial is infected with prejudicial constitutional error, Commonwealth v. Stewart, 383 Mass. 253, 257 (1981).

2024See id. at 358 .

2024See Commonwealth v. Perkins, 450 Mass. 834, 845 (2008). 5 "In determining whether the defendant met his burden under the performance prong of the Saferian standard, we must first address what level of advice plea counsel w[as] constitutionally required to provide the defendant given the charges against him." Commonwealth v. Henry, 88 Mass. App. Ct. 446, 452 (2015).

2024See Commonwealth v. Perkins, 450 Mass. 834, 845 (2008). 5 "In determining whether the defendant met his burden under the performance prong of the Saferian standard, we must first address what level of advice plea counsel w[as] constitutionally required to provide the defendant given the charges against him." Commonwealth v. Henry, 88 Mass. App. Ct. 446, 452 (2015).

2024See Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004).

2024See Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 395 (2012) ("An evidentiary hearing may not be necessary, however, if the substantial issue raised is solely a question of law, or if the facts are undisputed in the record"). 6 Conclusion.

2022See Commonwealth v. Roberts, 433 Mass. 45, 57-58 (2000); Commonwealth v. Snell, 428 Mass. 766, 780-781 , cert. denied, 527 U.S. 1010 (1999). 4.

2017Because the defendant's motion and affidavit failed to present facts to establish that the use of the GPS location data constituted a search in the constitutional sense, the judge properly denied the motion without an evidentiary hearing, see Commonwealth v. Rodriguez, 456 Mass. 578, 588 (2010), and the evidence was properly admitted at trial.

2014See Commonwealth v. DeVincent, supra at 69 .

2008Commonwealth v. Hap Lay, 63 Mass. App. Ct. 27, 35 (2005), citing Commonwealth v. Walker, supra (“As no voir dire was held, we consider the defendant’s affidavit in support of his motion to determine whether it established a triable issue of suggestiveness”).

2005See Commonwealth v. Walker, 421 Mass. 90, 94 (1995).

2004Commonwealth v. Goodreau, 58 Mass. App. Ct. 552, 558-559 (2003).

2001A motion for a new trial is addressed to the sound discretion of the judge, Commonwealth v. Smith, 381 Mass. 141, 142 (1980), and the judge’s disposition will not be reversed unless it is manifestly unjust, Commonwealth v. Schand, 420 Mass. 783, 787 (1995), or unless the trial is infected with prejudicial constitutional error, Commonwealth v. Stewart, 383 Mass. 253, 257 (1981).

2001A motion for a new trial is addressed to the sound discretion of the judge, Commonwealth v. Smith, 381 Mass. 141, 142 (1980), and the judge’s disposition will not be reversed unless it is manifestly unjust, Commonwealth v. Schand, 420 Mass. 783, 787 (1995), or unless the trial is infected with prejudicial constitutional error, Commonwealth v. Stewart, 383 Mass. 253, 257 (1981).

1999A “defendant is entitled to the untrammeled and unimpaired assistance of counsel free of any conflict of interest and unrestrained by commitments to others.” Commonwealth v. Martinez, 425 Mass. at 388 , quoting from Commonwealth v. Michel, 381 Mass. 447, 453 (1980).

1999Because the affidavits do raise a “substantial issue,” the trial judge abused her discretion by denying the motion without an evidentiary hearing. “[I]n a case like this, in the absence of a hearing followed by findings of fact, or of a stipulation of facts, it is not possible for an appellate court to know ‘whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer [and] whether it has likely deprived the defendant of an otherwise available, substantial ground