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

23-P-281

COMMONWEALTH

vs.

LARS E. PRESCOTT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order of a District Court 

judge denying his motion for a new trial that sought to vacate a 

guilty plea entered in 1986. We affirm.

Background. On November 8, 1985, a complaint charged the 

defendant with larceny of property over $100 and malicious 

destruction of property over $100. Three months later, on

February 25, 1986, the defendant admitted to sufficient facts to 

warrant a finding of guilty, and the judge sentenced him to one 

year of probation, imposed a fine, and ordered restitution. The 

defendant was ultimately discharged from probation.

In 2021, the defendant filed a motion for a new trial along 

with his own affidavit detailing the events surrounding his 
2

convictions. He claimed that (1) his lawyer had a conflict of 

interest by simultaneously representing the defendant and two 

codefendants, (2) his lawyer and the judge erred by failing to 

inform him that a conviction would prevent him from obtaining a 

license to carry a firearm, and (3) the judge should have 

informed him that an admission to sufficient facts would result 

in a conviction.

At a hearing on the motion, the defendant testified before 

a second judge who was not the plea judge, and he presented no 

additional evidence. According to his testimony, the defendant, 

who was nineteen or twenty years old in 1985, was satisfied with 

the disposition of the case and did not appeal at that time. He 

understood that he was pleading guilty, but the conviction would 

be "off [his] record" following probation. His lawyer never 

explained that the proceedings would result in a felony 

conviction and never explained that he would be forfeiting 

rights under the Second Amendment. He also did not recall the 

judge ever explaining the forfeiture of Second Amendment rights. 

Around 2014, the Northborough Police Department issued the 

defendant a license to carry a firearm. Six years later, the 

police chief denied a renewal of that license and confiscated 

his firearms due to his convictions. In its opposition, the 

Commonwealth argued that the defendant failed to produce 
3

evidence that overcame the presumption of a valid plea, and that 

the judge should not credit the defendant's "self-serving"

assertions. The judge denied the motion in an endorsement order

and "concur[red] with the Commonwealth's position."

On appeal, the defendant repeats his conflict of interest 

claim as well as his claim that counsel and the plea judge 

failed to advise him that a conviction would preclude him from 

obtaining a license to carry a firearm. He adds a new claim 

that the plea judge failed to give him the opportunity to 

withdraw a defendant-capped plea.

Discussion. "A postsentence motion to withdraw a plea is 

treated as a motion for a new trial." Commonwealth v. Conaghan, 

433 Mass. 105, 106 (2000). "Pursuant to Mass. R. Crim. P. 30 

(b), as appearing in 435 Mass. 1501 (2001), a judge 'may grant a 

new trial at any time if it appears that justice may not have 

been done.'" Commonwealth v. Ferreira, 481 Mass. 641, 648 

(2019). "We review the denial of a motion for a new trial 'only 

to determine whether there has been a significant error of law 

or other abuse of discretion.'" Commonwealth v. Bonnett, 482 

Mass. 838, 843-844 (2019), quoting Commonwealth v. Grace, 397 

Mass. 303, 307 (1986). See L.L. v. Commonwealth, 470 Mass. 169, 

185 n.27 (2014).
4

1. Conflict of interest. "An element of the fundamental 

right to counsel under art. 12 of the Massachusetts Declaration 

of Rights is the defendant's right to the full and undivided 

loyalty of his attorney." Commonwealth v. Shraiar, 397 Mass. 

16, 20 (1986). "A defendant is entitled to the untrammeled and 

unimpaired assistance of counsel free from any conflict of 

interest." Id. The defendant bears the burden of presenting 

"demonstrative proof detailing both the existence and the 

precise character of this alleged conflict of interest; we will 

not infer a conflict based on mere conjecture or speculation." 

Shraiar, supra.

We discern no error in the judge's rejection of this claim 

because the record shows the defendant did not meet his burden 

of showing an actual conflict of interest. See Commonwealth v. 

Stote, 456 Mass. 213, 218 (2010). In support of his motion, the 

defendant testified, without elaboration, that one lawyer 

represented all the co-defendants during the plea hearing. Even 

if the judge credited this testimony, the defendant did not meet 

his burden. Courts do not "automatically infer a conflict of 

interest from dual or joint representation alone." Commonwealth

v. Balliro, 437 Mass. 163, 168 (2002). In the absence of "a 

conflict of interest which interferes with the proper 

presentation of the defense of one of the codefendants, the mere 
5

fact that both are represented by the same attorney is not 

grounds for [relief]." Commonwealth v. LaFleur, 1 Mass. App. 

Ct. 327, 331 (1973), quoting Lugo v. United States, 350 F.2d 

858, 859 (9th Cir. 1965).

In his brief, the defendant faults the Commonwealth for 

failing to offer evidence "contradicting" his claim of a 

conflict of interest. The burden of proof on the motion, 

however, rested with the defendant and not the Commonwealth. 

Stote, 456 Mass. at 218. We also note that the defendant did 

not produce affidavits from the codefendants or the lawyer, a 

transcript of the plea hearing, docket entries from the 

codefendants' cases, or a police report. See Commonwealth v. 

Lopez, 426 Mass. 657, 665-666 (1998). A motion for a new trial 

cannot be "grounded on mere speculation." Commonwealth v. 

Laguer, 410 Mass. 89, 94 (1991).

2. Advisory regarding license to carry. The defendant next 

contends that his motion should have been allowed because 

counsel rendered ineffective assistance and the plea judge erred 

by failing to explain the consequences a conviction would have

on a license to carry a firearm. "Where a motion for a new 

trial is based on ineffective assistance of counsel, the 

defendant must show that the behavior of counsel fell 'below 

that . . . [of] an ordinary fallible lawyer' and that such 
6

failing 'likely deprived the defendant of an otherwise 

available, substantial ground of defence.'" Commonwealth v.

Miller, 101 Mass. App. Ct. 344, 348 (2022), quoting Commonwealth

v. Saferian, 366 Mass. 89, 96 (1974). A plea judge must be 

satisfied that the defendant understands the direct consequences 

of the plea, including "waiving the privilege against selfincrimination, waiving the right to trial by jury, and waiving 

the right to confront one's accusers." Commonwealth v. Minon, 

102 Mass. App. Ct. 244, 247 (2023). Because the consequences 

pertaining to the license to carry were collateral to the plea, 

the motion judge properly rejected this claim as well.

A guilty plea is not necessarily vulnerable "because a 

defendant has received inaccurate or incomplete advice from his 

counsel concerning the penal consequences of the plea." 

Commonwealth v. Indelicato, 40 Mass. App. Ct. 944, 945 (1996). 

As in the Indelicato case where the plea had adverse 

consequences on a license to carry a firearm, the alleged lapse 

by counsel here involved a matter "entirely collateral to the 

charges pending for the plea." Id. Advice concerning such 

collateral consequences "has been considered outside the ambit 

of the right to the effective assistance of counsel." Minon, 

102 Mass. App. Ct. at 247. We disagree with the defendant's 

contention that the constitutional right to bear arms as 
7

articulated in recent cases requires a different result. See, 

e.g., New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 

U.S. 1, 10 (2022); McDonald v. Chicago, 561 U.S. 742, 791 

(2010). Criminal convictions can impair many rights -- even 

rights with a constitutional dimension. Indeed, "criminal 

convictions can carry a wide variety of consequences other than 

conviction and sentencing, including civil commitment, civil 

forfeiture, the loss of the right to vote, disqualification from 

public benefits, ineligibility to possess firearms, dishonorable 

discharge from the Armed Forces, and loss of business or 

professional licenses." Minon, 102 Mass. App. Ct. at 248, 

quoting Padilla v. Kentucky, 559 U.S. 356, 376 (2010) (Alito, 

J., concurring). Counsel was "not required to be omniscient," 

and if he failed to fully advise the defendant of the collateral 

consequences of the plea, such a failing was not a "grave and 

fundamental" error that fell below the standard of an ordinary 

fallible lawyer. Indelicato, supra, quoting Commonwealth v. 

Norman, 27 Mass. App. Ct. 82, 86 (1989).

Similarly, before accepting the plea in 1986, the judge had 

no obligation to probe the defendant's understanding of his 

constitutional right to bear arms. "The rule that a plea must 

be intelligently made to be valid does not require that a plea 

be vulnerable to later attack if the defendant did not correctly 
8

assess every relevant factor entering into his decision." Brady

v. United States, 397 U.S. 742, 757 (1970). Also, the decision 

to plead guilty often includes "imponderable questions for which 

there are no certain answers; judgments may be made that in the 

light of later events seem improvident, although they were 

perfectly sensible at the time." Id. at 756-757. Such is the 

case here. In 1986, the defendant made a perfectly sensible 

decision to bring his criminal case to an end, and he now 

regrets the decision based upon collateral consequences that 

only recently came to light. These circumstances do not evince 

an error by the plea judge but instead demonstrate a legislative 

judgment as to who should have a license to carry a firearm.

3. Opportunity to withdraw plea. Finally, for the first 

time, the defendant claims that he was not given the opportunity 

to withdraw his defendant-capped plea during the plea hearing. 

This argument fails because he did not raise it below. "If a 

defendant fails to raise a claim that is generally known and 

available at the time of trial or direct appeal or in the first 

motion for postconviction relief, the claim is waived." Rodwell

v. Commonwealth, 432 Mass. 1016, 1018 (2000), citing 

Commonwealth v. Ambers, 397 Mass. 705, 707 n.2 (1986). Even if 

not waived, the claim lacks any support in the record. When a 

plea remains unchallenged for a lengthy period of time leaving 
9

no contemporaneous record, the defendant must "provide 

sufficient credible and reliable factual evidence" in support of 

the motion. Lopez, 426 Mass. at 663. He has not done so, and 

we decline to speculate as to what might have happened during 

the plea hearing.

Order denying motion for a 

new trial affirmed.

By the Court (Meade, 

Englander & Hodgens, JJ.1),

Clerk

Entered: September 11, 2024.

1 The panelists are listed in order of seniority.