Court Case Record COMMONWEALTH vs. EDUARDO FERRER 2012-P-0220


Court Case Number: 2012-P-0220

Case Number2012-P-0220
Case TypeCriminal
StateMassachusetts, MA
CountyLowell District, MI
CourtLowell District, MI
Court Address
Field Date07/15/1996
Close Date10/07/2013


James W. Sahakian, A.D.A. Hallie White Speight, A.D.A.CommonwealthPlaintiff/Appellee
Jennifer H. O'Brien, EsquireEduardo FerrerDefendant/Appellant
Entry Date Paper Entry Text
02/09/2012 #1 Transcripts received: NONE
02/09/2012 #2 Entered.
02/09/2012 #3 Notice of entry sent.
02/21/2012 #4 SERVICE of brief & appendix partial impounded for Defendant/Appellant Eduardo Ferrer.
03/01/2012 #5 MOTION to extend brief due date of Commonwealth.
03/01/2012 #6 RE#4: Extension to 06/28/2012 granted for filing of brief of Commonwealth, Plaintiff/Appellee. Notice to counsel.
06/08/2012 #7 SERVICE of brief for Plaintiff/Appellee Commonwealth.
09/11/2012 #8 Notice sent seeking information on unavailability for oral argument in November 2012
09/12/2012 #9 Letter of Jennifer H. O'Brien, Esquire unavailable for oral argument November 29 - December 3rd.
10/09/2012 #10 Notice of 11/16/2012, 9:30 AM argument at John Adams Courthouse, Courtroom 3 (a3) sent.
11/16/2012 #11 Oral argument held. (Cohen, J., Katzmann, J., Wolohojian, J.).
12/04/2012 #12 ORDER: The defendant appeals from the denial of his motion to vacate his guilty plea made in 1996 to the crimes of indecent assault and battery on a child under the age of fourteen, open and gross lewdness, and assault and battery. The motion to vacate was filed almost sixteen years later. The basis of the motion was the supposed recantation of the victim and a principal witness, both of whom submitted affidavits sworn under oath. There was no affidavit of plea counsel. The defendant's affidavit stated that he had not sexually assaulted the victim, but pleaded guilty because of the prospect of going to jail if he chose to go to trial. The motion was denied without an evidentiary hearing, and there is no memorandum of decision or other explanation of the judge's analysis or reasoning in denying the motion.[1] Although it appears likely that the motion was denied because the judge did not credit the affidavits, we are reluctant to proceed on that assumption given the fact that no evidentiary hearing was held below and the judge did not explain his reasoning. In these circumstances, caution leads us to remand the matter for the sole purpose of permitting the judge to make a written explanation of his decision to deny the motion. In his discretion, the judge may also conduct an evidentiary hearing. The appellate proceedings are stayed, the defendant shall file a status report thirty days from the date of this order. The defendant is to submit the judge's order within ten days of its issuance. This court will retain jurisdiction. So ordered. (Cohen, Katzmann & Wolohojian, JJ.) . *Notice/Attest/Walker, J. Footnote 1. The motion judge was also the judge who had accepted the plea.
01/04/2013 #13 Status Report, filed by Eduardo Ferrer.
01/04/2013 #14 RE#9: The within document is to be filed forthwith by emailing a PDF including any attachments and certificate of service to *Notice.
01/09/2013 #15 Memo: pdf of paper #9 received this date. @
05/10/2013 #16 ORDER: By June 10, 2013, the trial court is to comply with this court's December 4, 2012 order (a copy of which is included). Appellant is to file a status report on or before May 24, 2013 and also on or before June 21, 2013. So ordered. (Cohen, Katzmann & Wolohojian, JJ.) *Notice/Attest.
05/29/2013 #17 Motion to allow late filing of status report, filed by Eduardo Ferrer.@
05/29/2013 Status Report, filed by Eduardo Ferrer.@
06/03/2013 RE#11: Allowed (Cohen, Katzmann & Wolohojian, JJ.). *Notice.
06/24/2013 Motion to vacate order remanding case to the trial court, filed by Eduardo Ferrer.@
06/24/2013 Status Report, filed by Eduardo Ferrer.@
07/01/2013 Response to paper #13, filed by Commonwealth.^