Commonwealth v. Robin – Docket No. 1411CR0200 – Defendant convicted by a jury of both carrying a firearm without a license and carrying a loaded firearm without a license and sentenced to 18 months in the House of Correction. Attorney O’Brien convinces trial judge to allow a motion to stay the sentence pending appeal because of the likelihood of success on the merits on appeal. Attorney O’Brien subsequently files a motion for new trial arguing trial attorney provided ineffective assistance of counsel. Trial judge agrees and awards Defendant a new trial. Thereafter, Attorney O'Brien successfully obtained a dismissal of all charges.
Gold Star Homes v. Darbouze, 89 Mass App. Ct. 324 (2016) - Where mortgagors claimed that the foreclosing entity did not have the power of sale to foreclose on their property, and filed identical claims challenging the sale in in both Land and Housing Court, Appeals Court affirms judgments awarding possession of foreclosed property to the bona fide third party purchaser. (co-counsel John Miller)
Commonwealth v. Morris, Docket No.14-P-1104 – Defendant convicted in Superior Court after jury trial of several counts of rape of a child and rape of a child by force. On appeal, Attorney O’Brien argues there was insufficient evidence to sustain one of the convictions against him and that conviction was based upon unwarranted inferences, conjecture, and surmise. Appeals Court agrees and vacates conviction on one indictment charging rape of a child.
Commonwealth v. Enwonwu,83 Mass. App. Ct. 1127 (2013) - Defendant convicted in Superior Court on numerous charges, one of which included a charge of possession of a firearm. On appeal, Attorney O’Brien argues that although there was evidence that the defendant or his co-venturers possessed a firearm, the Commonwealth failed to provide evidence sufficient to support that it had a barrel length of less than 16 inches, as is required by law. Appeals Court agrees and reverses and sets aside verdict before dismissing indictment.
Phalla IV v. Hang,83 Mass. App. Ct. 598 (2013) – Where Wife argued that the Probate & Family Court judge erred in allowing Husband to claim the children as dependents on his State and Federal income tax returns, Appeals Court rejects Wife’s argument. Matter is remanded to the Probate and Family Court with instructions for trial judge to order Wife to execute a written declaration releasing her claim to the dependency deductions.
Commonwealth v. Queenan,Docket No. 11-P-278 - Defendant found guilty of indecent exposure after a jury trial. On appeal, Attorney O’Brien argues evidence was insufficient to support a conviction since the Commonwealth failed to prove at least one person was actually offended by his behavior, as is required under Massachusetts law. Appeals Court agrees, reverses conviction, and enters judgment for Defendant.
Commonwealth v. Phineas P., Docket No. 09-P-1934 - Defendant found guilty in Juvenile Court of rape and sentenced to 4-6 years in state prison. On appeal, Attorney O’Brien argues that verdict was legally inconsistent since it was impossible for jury to acquit on the greater offense of aggravated rape by joint venture yet at the same time, find Defendant guilty of simple rape using the co-defendant's body part. Appeals Court agrees, reverses and vacates conviction. Defendant is immediately released from custody.
Commonwealth v. Hallisey, Docket No. NOCR2008-00741 - Defendant pled guilty to failing to register as a sex offender. Attorney O’Brien argues that plea was not made knowingly, voluntarily, and intelligently, since he was not provided with effective assistance of counsel where his attorney failed to properly investigate whether the defendant had a duty to register as a sex offender. Trial judge agrees, vacates conviction and resulting sentence, then dismisses the charge entirely.
Commonwealth v. Hill, Docket No. 0911CR6076 - Defendant pleads guilty to OUI 2nd offense, along with various other motor vehicle driving infractions. Attorney O’Brien argues that plea was tainted since it was not made knowingly, voluntarily, and intelligently. She also claims Defendant was not provided with effective assistance of counsel. Trial judge agrees, vacates conviction and resulting sentence, and awards Defendant a new trial.
Commonwealth v. Fidalgo, 74 Mass. 130 (2009) - Defendant convicted of filing a false motor vehicle insurance claim. During trial, prosecutor elicited testimony from Defendant that she had been a passenger in three other automobile accidents over the preceding nine years and that she claimed injuries in each. On appeal, Attorney O’Brien argues that the introduction of this evidence was irrelevant and unduly prejudicial. Appeals Court agrees, vacates judgment, and awards new trial.
Commonwealth v. Hunt, 73 Mass. App. Ct. 616 (2009) - Defendant appeals from the denial of her motion for a new trial in which she attempted to withdraw a guilty plea for assault and battery. Attorney O’Brien argues that Defendant’s plea was not intelligently made since judge did not probe Defendant's understanding of the elements of the crime and Appeals Court agrees. Defendant's motion to withdraw guilty plea and for new trial allowed.
Commonwealth v. Vlahos, Docket No. 0648CR1713 - Defendant originally found guilty of carrying a firearm without a license. Attorney O’Brien argues that a new trial was warranted because Defendant’s prior attorney was ineffective for his failure to challenge, at the initial motion to suppress hearing, the legality of the stop and the arresting officer’s violation of his own inventory policy, which specifically prohibited the search of locked glove compartments. Motion for new trial allowed by the District Court and Defendant eventually succeeded in suppressing the firearm found in the vehicle.
Commonwealth v. Tabi, Docket No. 0452 CR 2957 - Defendant originally found guilty by jury of assault with a dangerous weapon. Attorney O’Brien argues that a new trial is warranted because Defendant’s attorney was ineffective for failing to conduct a proper investigation before trial and to introduce into evidence proof of the alleged victim’s racial bias toward Defendant. Motion for new trial allowed by the District Court.
Commonwealth v. Ramirez, 67 Mass. App. Ct. 1105 (2006) - Defendant convicted of distribution of a class A substance and distribution of a class A substance in a school zone. The findings of guilt were premised on an out-of-court statement made by the alleged purchaser. Attorney O’Brien argues on appeal that statements violated his right to confrontation in accordance with Crawford v. Washington. Appeals court agrees, judgments are reversed, and the findings are set aside.
Commonwealth v. Chambers, Docket No. 06-P-0507- After jury trial, Defendant convicted of OUI 4th, leaving the scene of property damage, failure to stop for police, and operating after suspension. On appeal, Attorney O’Brien argues Defendant is entitled to a new trial because she was never allowed a separate trial to determine whether her OUI was in fact a subsequent offense. Attorney O’Brien further argues that Defendant’s motion for required finding of not guilty should have been allowed at trial on the count of operating after suspension. Trial judge agrees, allows a new trial on the charge of OUI subsequent, and reverses the previous finding of guilty on the charge of operating after suspension.
Commonwealth v. Alger, 67 Mass. App. Ct 1105 (2006) - Defendant convicted of receiving a stolen motor vehicle, larceny, and possession of burglarious tools.
Attorney O’Brien argues on appeal that his motion to suppress all evidence should have been allowed and that the Commonwealth, at trial, failed to prove that Defendant possessed tools that could be considered burglarious. Appeals court agrees, reverses prior denial of motion to suppress, reverses all convictions against Defendant, and enters judgment in his favor.
Commonwealth v. Ruehle, 65 Mass. App. Ct. 1115 (2006) - Defendant convicted of indecent assault and battery on a person over the age of 14 years old. Attorney O’Brien argues on appeal that judge improperly held it against Defendant that he failed to testify on his own behalf at trial. Appeals Court agrees judge's actions were improper. Judgment vacated on appeal and new trial awarded.
Commonwealth v. Raba – Docket No. 01-P-1738 – Defendant convicted of several crimes including assault and violation of a restraining order. On appeal, Attorney O’Brien argues offenses of assault and violation of a restraining order are duplicative. Appeals Court agrees and vacates duplicative conviction and sentence for assault.
Commonwealth v. Darnell D, 445 Mass. 670 (2005) - Juvenile defendant convicted of receiving a stolen motor vehicle. Attorney O’Brien argues on appeal that as Defendant was merely a passenger in the vehicle, he could not "possess or control" the vehicle, which is a required element of the crime. Attorney O’Brien also argues that there was not enough evidence to warrant a conviction, and that the restitution award was erroneous. Conviction initially affirmed by Appeals Court. Application for Further Appellate Review allowed by the Massachusetts Supreme Judicial Court. Judgment reversed by the Supreme Judicial Court.
Commonwealth v. Scrima, 60 Mass. App. Ct. 1108 (2003)- Defendant convicted of trespass of property. On appeal, Attorney O’Brien argues error in prosecutor’s closing argument, as he repeatedly referred to the evidence was "uncontroverted." Appeals Court agrees that prosecutor's statements improperly commented on Defendant's failure to testify and vacates conviction against the Defendant. New trial awarded.
Commonwealth v. Kivelehan, Docket No. 01-P-1583 - Defendant convicted of two counts of assault and battery with a dangerous weapon, assault and battery on a police officer, and disturbing the peace. Attorney O’Brien argues on appeal that defense counsel erred by not requesting, and judge erred by not giving, an instruction on self-defense. Appeals court agrees and vacates all convictions against Defendant. New trial awarded.
Commonwealth v. Ameral, Docket No.02-P-471 -Defendant found guilty of malicious destruction of property over $250; a felony. On appeal Attorney O’Brien argues there was insufficient evidence to warrant a conviction since the Commonwealth failed to introduce any evidence of the value of the property allegedly destroyed. Appeals Court agrees, reverses conviction against Defendant finding him guilty of only the lesser included charge of malicious destruction of property under $250; a misdemeanor. Appeals Court remands Defendant's case back to trial court for re-sentencing.
Commonwealth v. Bogale, Docket No. 0152CR949 - Defendant charged with threatening to commit a crime and assault with a dangerous weapon. Attorney O’Brien argues in a motion for new trial that trial counsel was ineffective for entering into evidence, information from a 58A hearing which alleged that Defendant stalked and harassed the victim, and was considered to be dangerous. Trial judge agrees, finds prior defense counsel to be ineffective, vacates Defendant's convictions, and awards him a new trial.