factual basis claim in Massachusetts

2026Although a "narrow" exception exists "when the factual basis of the claim appears indisputably on the trial record," id., quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994), that is not the case here.

2025"An exception to [this] rule is that a 'claim of ineffective assistance may be resolved on direct appeal of the defendant's conviction when the factual basis of the claim appears indisputably on the trial record.'" Id. at 811 , quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).

2026As "our courts strongly disfavor raising claims of ineffective assistance on direct appeal," Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), such claims "should only be brought on direct appeal when the factual basis of the claim appears indisputably on the trial record," Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573-574 (2007). 5 "To sustain a claim of ineffective assistance of counsel, the defendant must show that [1] the behavior of counsel fell below that of an 'ordinary fallible lawyer' and [2] that such failing 'likely deprived the defendant of an otherwise available, substantia

2026Although a "narrow" exception exists "when the factual basis of the claim appears indisputably on the trial record," id., quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994), that is not the case here.

2026As "our courts strongly disfavor raising claims of ineffective assistance on direct appeal," Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), such claims "should only be brought on direct appeal when the factual basis of the claim appears indisputably on the trial record," Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573-574 (2007). 5 "To sustain a claim of ineffective assistance of counsel, the defendant must show that [1] the behavior of counsel fell below that of an 'ordinary fallible lawyer' and [2] that such failing 'likely deprived the defendant of an otherwise available, substantia

2026The exception to this is "when the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Keon K., 70 Mass. App. Ct. 568 , 573–574 (2007).

2026As "our courts strongly disfavor raising claims of ineffective assistance on direct appeal," Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), such claims "should only be brought on direct appeal when the factual basis of the claim appears indisputably on the trial record," Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573-574 (2007). 5 "To sustain a claim of ineffective assistance of counsel, the defendant must show that [1] the behavior of counsel fell below that of an 'ordinary fallible lawyer' and [2] that such failing 'likely deprived the defendant of an otherwise available, substantia

2023The burden rests with the defendant to show that counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer" and "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2007We may resolve a claim of ineffective assistance of counsel on direct appeal where, as here, “the factual basis of the claim appears indisputably on the trial record.” Commonwealth v. Henley, 63 Mass. App. Ct. 1, 8 (2005), quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).

2006Accord Commonwealth v. Henley, 63 Mass. App. Ct. 1, 7-8 (2005); Commonwealth v. Ortega, 59 Mass. App. Ct. 217, 221 (2003), S.C., 441 Mass. 170 (2004). 4 An exception to that rule is that a “claim of ineffective assistance may be resolved on direct appeal of the defendant’s conviction when the factual basis of the claim appears indisputably on the trial record.” Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).

2026Where the defendant raised the claim in this way, he will be entitled to relief only "when the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Davis, 481 Mass. 210, 223 (2019), quoting Commonwealth v. Gorham, 472 Mass. 112 , 116 n.4 (2015).

2026Relief may be granted on such a claim, however, "when the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Davis, 481 Mass. 210, 223 (2019), quoting Gorham, supra. Here, we cannot say on this record that defense counsel's failure to object was a manifestly unreasonable tactical decision. 8 prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

2012See Lannon v. Commonwealth, 379 Mass. 786,788 (1980).

2007See Lannon v. Commonwealth, 379 Mass. 786, 788 (1980); Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344-345 (1994).

2017For this reason, we are unable to determine whether "defense counsel's asserted failures may in fact have been the considered product of a tactical decision," Commonwealth v. McCormick , 48 Mass. App. Ct. 106 , 108 (1999), as the factual basis for this claim does not "appear[ ] indisputably on the trial record." Commonwealth v. Zinser , 446 Mass. 807 , 811 (2006), quoting from Commonwealth v. Adamides , 37 Mass. App. Ct. 339 , 344 (1994).

2016For that reason, we are unable to determine whether "defense counsel's asserted failures may in fact have been the considered product of a tactical decision," Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 108 (1999), as the factual basis for this claim does not "appear[] indisputably on the trial record." Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).

2025To succeed on a claim of ineffective assistance, the defendant must show "serious incompetency of counsel (behavior falling measurably below that which might be expected from an ordinary fallible lawyer) and prejudice that, in this context, means a 'reasonable probability' that 'but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), quoting Strickland v. Washington, 466 U.S. 668, 694 (1984).

2024It is also well established that "'the distorting effects of hindsight' must be avoided in evaluating a claim made after a trial in which attorney's defense strategy was proved unsuccessful." Commonwealth v. Valentin, 470 Mass. 186, 189 (2014), quoting Strickland v. Washington, 466 U.S. 668, 689 (1984).

2023See Commonwealth v. Peloquin, 437 Mass. 204 , 210 n.5 (2002).

2018Where, as here, the claim of ineffectiveness is based on a tactical decision, a "challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Ibid ., quoting from Commonwealth v. Peloquin , 437 Mass. 204 , 210 n.5 (2002).

2018The judge must be satisfied, based on all the information presented during the plea hearing, that "there is a 'strong factual basis' for the charge." Id ., quoting Commonwealth v. DelVerde , 398 Mass. 288 , 297 (1986).

2012The court in Commonwealth v. DelVerde, 398 Mass. at 297 , cited Henderson v. Morgan, 426 U.S. 637, 645-646 (1976), as supporting the factual basis requirement.

2009We nevertheless may resolve the issue when “the factual basis of the claim appears indisputably on the trial record.” Commonwealth v. Anderson, 58 Mass. App. Ct. 117, 124 , cert. denied, 540 U.S. 1009 (2003).

2007“A claim of ineffective assistance may be resolved on direct appeal of the defendant’s conviction when the factual basis of the claim appears indisputably on the trial record.” Commonwealth v. Anderson, 58 Mass. App. Ct. 117, 124 , cert. denied, 540 U.S. 1009 (2003).

2009We nevertheless may resolve the issue when “the factual basis of the claim appears indisputably on the trial record.” Commonwealth v. Anderson, 58 Mass. App. Ct. 117, 124 , cert. denied, 540 U.S. 1009 (2003).

2007“A claim of ineffective assistance may be resolved on direct appeal of the defendant’s conviction when the factual basis of the claim appears indisputably on the trial record.” Commonwealth v. Anderson, 58 Mass. App. Ct. 117, 124 , cert. denied, 540 U.S. 1009 (2003).

2022"The intelligence requirement may be met in one of three ways: the [plea] judge may explain the elements of the crime to the defendant; [defense] counsel may explain the elements of the crime to the defendant; or the defendant may 'admit[] the facts constituting the crime . . . even if he is not aware that [those] facts . . . are the elements of the crime.'" Hart, 467 Mass. at 325 , quoting Commonwealth v. Colantoni, 396 Mass. 672, 679-680 (1986).

2015See Commonwealth v. Hart, 467 Mass. at 325-326 .

2022"The intelligence requirement may be met in one of three ways: the [plea] judge may explain the elements of the crime to the defendant; [defense] counsel may explain the elements of the crime to the defendant; or the defendant may 'admit[] the facts constituting the crime . . . even if he is not aware that [those] facts . . . are the elements of the crime.'" Hart, 467 Mass. at 325 , quoting Commonwealth v. Colantoni, 396 Mass. 672, 679-680 (1986).

2014For a guilty plea to be valid, both of these questions must be answered in the affirmative; contrary to the view of the Appeals Court, see id. at 450 , the factual basis requirement is not necessarily satisfied so long as the record establishes, in one of the three permissible ways, see Commonwealth v. Colantoni, 396 Mass. at 679 , that the plea was intelligent. 3.

2026Relief may be granted on such a claim, however, "when the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Davis, 481 Mass. 210, 223 (2019), quoting Gorham, supra. Here, we cannot say on this record that defense counsel's failure to object was a manifestly unreasonable tactical decision. 8 prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

2026Relief may be granted on such a claim, however, "when the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Davis, 481 Mass. 210, 223 (2019), quoting Gorham, supra. Here, we cannot say on this record that defense counsel's failure to object was a manifestly unreasonable tactical decision. 8 prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

2026As "our courts strongly disfavor raising claims of ineffective assistance on direct appeal," Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), such claims "should only be brought on direct appeal when the factual basis of the claim appears indisputably on the trial record," Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573-574 (2007). 5 "To sustain a claim of ineffective assistance of counsel, the defendant must show that [1] the behavior of counsel fell below that of an 'ordinary fallible lawyer' and [2] that such failing 'likely deprived the defendant of an otherwise available, substantia

2025"A tactical decision by trial counsel is considered ineffective assistance only if such a decision was manifestly unreasonable when made." Commonwealth v. Diaz, 448 Mass. 286, 288 (2007).

2025To succeed on a claim of ineffective assistance, the defendant must show "serious incompetency of counsel (behavior falling measurably below that which might be expected from an ordinary fallible lawyer) and prejudice that, in this context, means a 'reasonable probability' that 'but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), quoting Strickland v. Washington, 466 U.S. 668, 694 (1984).

2025See Commonwealth v. Keon 4 "[T]he admission of feeble third-party culprit evidence poses a risk of unfair prejudice to the Commonwealth, because it inevitably diverts jurors' attention away from the defendant on trial and onto the third party, and essentially requires the Commonwealth to prove beyond a reasonable doubt that the third- party culprit did not commit the crime." Silva-Santiago, 453 Mass. at 800-801 . 5 See Commonwealth v. Connors, 95 Mass. App. Ct. 46, 53 (2019) (third-party culprit evidence not admissible when claimed third-party is principal and defendant is charged under theory

2025See Commonwealth v. Keon 4 "[T]he admission of feeble third-party culprit evidence poses a risk of unfair prejudice to the Commonwealth, because it inevitably diverts jurors' attention away from the defendant on trial and onto the third party, and essentially requires the Commonwealth to prove beyond a reasonable doubt that the third- party culprit did not commit the crime." Silva-Santiago, 453 Mass. at 800-801 . 5 See Commonwealth v. Connors, 95 Mass. App. Ct. 46, 53 (2019) (third-party culprit evidence not admissible when claimed third-party is principal and defendant is charged under theory

2025A claim of ineffective assistance "may be resolved on direct appeal, as opposed to on a motion for new trial, only where 'the factual basis of the claim appears indisputably on the trial record.'" Commonwealth v. Ryan, 93 Mass. App. Ct. 486, 494 (2018), quoting Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).

2025Generally, "[f]ailure to impeach a witness does not, standing alone, amount to ineffective assistance." Commonwealth v. Jenkins, 458 Mass. 791, 805 (2011).

2024As we clarify today in Bristol Asphalt, 493 Mass. at , we no longer parse the factual basis for a claim to determine if some portion of the claim could independently support the asserted cause of action, so as to permit partial dismissal of the claim under Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 155-156 (2017) (Blanchard I), S.C., 483 Mass. 200 (2019).

2024It is also well established that "'the distorting effects of hindsight' must be avoided in evaluating a claim made after a trial in which attorney's defense strategy was proved unsuccessful." Commonwealth v. Valentin, 470 Mass. 186, 189 (2014), quoting Strickland v. Washington, 466 U.S. 668, 689 (1984).

2023On this record, defense counsel's failure to argue for a manslaughter verdict was not manifestly unreasonable where the mitigating evidence was scant and the judge instructed the jury on self-defense, manslaughter based on reasonable provocation, sudden combat, and excessive force in self-defense.12 See Commonwealth v. Glover, 459 Mass. 836, 844 (2011) ("it was not manifestly unreasonable for defense counsel to proceed solely on a theory of self-defense").