Appeals

WORCESTER, MA

Did you get a fair trial? Was crucial evidence not presented in court? Attorney Michael Gerace is experienced in both criminal and civil appeals. He will consult with you, honestly assess your case, and provide you with options. Appeals require meticulous research and writing skills which Attorney Gerace has developed through his appellate practice and in his previous career, teaching in universities. He will thoroughly examine your transcripts and the entire record of the case, seeking any and all possible errors or issues of legal merit in the case. He will also provide you with a thorough and candid assessment of what you have in your case.

Attorney Gerace has handled numerous cases for post-conviction relief or for relief from a civil judgement, either on appeal before the Massachusetts Appeals Court or in motions for new trial before different trial courts in Massachusetts. He has successfully argued such cases before these courts.

How Do Appeals Work?

What is a Motion for a New Trial?

Most recently, Attorney Gerace has argued the following:

Commonwealth v. V, Mass Appeals Court

2 OF 5 CONVICTIONS VACATED, 6/8/2015

This was a gun case, where the Defendant was charged with possessing a Russian SKS Assault Rifle, which came with numerous additional charges. While convicted at trial of 5 out of the 6 charges he faced in Suffolk County Superior Court in Boston, Attorney Gerace had two of these overturned by the Appeals Court. The 2 overturned convictions were Receiving a Weapon with a Defaced Serial Number or Identification Number (a charge under G.L. c. 269, s. 11C), and Carrying a Firearm Without a License (a charge under G.L. c. 269, s. 10(a)).

The conviction for receiving a weapon with a defaced serial number or identification number was vacated because the number alleged by the prosecution to have been defaced on the weapon was the US importer number. The US importer number is neither a “serial number” nor an “identification number” in Massachusetts law. The very definition of these numbers is contained in G.L. c. 269, s. 11A. Looking at those definitions, it is clear that it is not even a crime to receive a weapon with a defaced US importer number in Massachusetts. It is a federal crime, given that the US importer number is mentioned as a protected number in federal criminal law (see 18 USC 922k), but the US importer number is not a protected number in Massachusetts. The carrying charge (under G.L. c. 269, s. 10(a)) was vacated because it was duplicative with another charge (G.L. c. 269, s. 10(m)).

Commonwealth v. P, Worcester Superior Court

MOTION FOR NEW TRIAL ALLOWED ON A 2002 CONVICTION, 8/25/2015

This was a recently decided Motion for New Trial, where the Defendant had pleaded guilty in 2002 to an indecent assault and battery of a person over 14, under G.L. c. 265, s. 13H in the Worcester Superior Court (indicted for rape in 2001). There were 2 key issues decided on by the motion judge. One was that the facts alleged by the Commonwealth were simply insufficient to constitute the elements of the offense charged. In particular, there were no facts alleged that showed that the Defendant had actually engaged in physical contact with the alleged victim (i.e, a battery) and, from there, that there were no facts shown that the alleged “contact” was indecent. There have been a handful of cases that have dealt with this particular form of legal argument in a post-conviction context. The most prominent cases are Commonwealth v. Loring, 463 Mass. 1012 (2012); Commonwealth v. DelVerde, 398 Mass. 288 (1986); and, Commonwealth v. Hart, 467 Mass. 322, 325 (2014). This case is in line with these cases. Second, the motion judge agreed that the guilty plea was not Intelligent, a legal term that requires a showing on the record that the Defendant is informed of and aware of the nature of the charges against him. There was no such showing in this case and the judge agreed.

Commonwealth v. BH, Cambridge District Court

This was an assault and battery that allegedly occurred on the subway from Cambridge to Quincy. The matter was arraigned in the Cambridge District Court. After the defendant was convicted, I took the case as a post-conviction matter. Once I completed my investigation of the case, I realized that the defendant was not competent to stand trial for various personal reasons. I did a motion for new trial in the Cambridge District Court on grounds that the client was not competent to stand trial, had an expert testify to the court about the defendant’s condition, and the motion was allowed. His conviction was vacated.

Commonwealth v. RP, Dudley District Court

This was a failure to register as a sex offender case in the Dudley District Court, where the defendant pleaded guilty to the failure, took a jail term and was required to be on lifetime community parole ever after. I took the case as a post-conviction matter, discovered that the underlying conviction he had (why he was registered to begin with) was not within the enumerated list of offenses in the statute that allowed lifetime community parole (G.L. c. 6, s. 178H(a)(1)). I filed a motion to correct or vacate an illegal sentence under Massachusetts Rules of Criminal Procedure 30(a) and got the lifetime community parole part of the sentence vacated.