Commonwealth v. Gilbert

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17-P-967 Appeals Court
COMMONWEALTH vs. RICHARD L. GILBERT.
No. 17-P-967.
Worcester. May 10, 2018. - October 3, 2018.
Present: Trainor, Ditkoff, & Wendlandt, JJ.
Rape. Kidnapping. Assault with Intent to Rape. Indecent
Assault and Battery. Administering Drug with Intent of
Facilitating Unlawful Sexual Intercourse. Assault and
Battery by Means of a Dangerous Weapon. Burglary.
Practice, Criminal, Plea, Postconviction relief, Sentence,
Duplicative convictions, Assistance of counsel.
Indictments found and returned in the Superior Court
Department on September 13, 2002.
A motion to withdraw pleas of guilty and for resentencing,
filed on December 13, 2016, was heard by J. Gavin Reardon, Jr.,
J.
Edward C. Gauthier, IV, for the defendant.
Donna-Marie Haran, Assistant District Attorney, for the
Commonwealth.
DITKOFF, J. Based on a long and brutal series of rapes and
assaults on a single victim, the defendant, Richard L. Gilbert,
pleaded guilty to multiple crimes, including eleven indictments
2
for aggravated rape, in a plea without an agreement regarding
disposition. Concluding that multiple counts of aggravated rape
may be premised on a single aggravating factor, we reject the
defendant's claim that three of his aggravated rape convictions
and eight of his convictions of lesser offenses must be vacated.
Further finding no ineffectiveness in plea counsel's lengthy
sentencing argument or his advice to the defendant, we affirm
the Superior Court order on the defendant's motion for
postconviction relief.
1. Background. At approximately 9 P.M. on June 26, 2002,
the victim, a thirty-eight year old woman, arrived home alone to
the apartment in Worcester that she shared with her two school-
aged children. She encountered the defendant outside her
apartment and exchanged cursory greetings with him before
turning to her apartment. As she unlocked the door, the
defendant pushed the victim inside and grabbed her face to cover
her mouth as she screamed. He threw her face first onto the
floor and told her to unbutton and unzip the shorts she was
wearing, then pulled them down with her underpants. He
repeatedly threatened her "to just do what he said," and not to
scream. He said he "would hurt her," but that it "would be over
in a minute."
The defendant tried to enter the victim's vagina and rectum
but was unable to do so. He then performed oral sex on her and
3
digitally penetrated her vagina and rectum. The victim begged
the defendant to let her go, falsely telling him her children
would be home at any moment. The defendant did not stop;
instead, he lifted her off the floor, told her they were leaving
the apartment, took her keys, and carried her across the hallway
to a second apartment, where the defendant's parents lived. The
door was locked, and he was unable to enter despite kicking and
banging on the door. He told her, "We're going back to your
place," and said, "If you make any noise, I'll snap your neck."
The defendant reentered her apartment with the victim and
made her get on the floor. He grabbed some clothing and used it
to gag and bind the victim with her hands behind her back, then
took the victim out a back door to another hallway. They
entered his parents' apartment through an unlocked back door.
Once inside, he took the victim to a room with a mattress on the
floor and told her to lie down. The defendant rubbed lotion and
cream all over her body, then alternated between penetrating the
victim vaginally and performing oral sex on her. He also forced
her to perform oral sex on him. The defendant then turned the
victim on her stomach, gagged her mouth, and hog-tied her hands
and feet together. He carried her to a different bed in another
room, then went inside a bathroom and returned with a hypodermic
needle. Showing it to the victim, he said, "This is what drugs
do to you. I'm a product of my environment. . . . It's almost
4
over." The defendant took the hog-tied victim into the bathroom
and put her on her hands and knees, then penetrated her anally
until she screamed in pain. He stopped, then penetrated her
vaginally and forced her to perform oral sex on him.
The defendant prepared the needle for the victim, giving
her an option: injection into her arm or into her neck. The
victim begged the defendant not to inject her at all;
nevertheless, he injected the needle into her buttocks and told
her it was liquid valium. He shaved her pubic area and lathered
her body with cream before vaginally raping her again and
forcing her to masturbate herself. The defendant prepared
another needle and injected the victim a second time into her
foot. He put the victim on all fours and penetrated her from
behind, then orally, ejaculating into her mouth. He made the
victim wash her mouth out, telling her she was rinsing away
evidence.
As the defendant prepared a third needle, the victim said
she "didn't feel right"; she was shaking, her mouth was dry, and
she was experiencing heart palpitations. He replied, "[T]hat's
what was supposed to happen," and injected her a third time,
telling the victim "this was dinner and dancing." He also said
to "never forgive him and what he did was a horrible thing," and
that he had "added time because he had kidnapped her from her
apartment." Then he vaginally raped her again.
5
At this point the defendant untied the victim, letting her
put on a pair of his jeans while he made a telephone call. On
the telephone, the defendant said he had blacked out and
awakened with someone he had taken against her will, but that it
was too late to turn back now. He made the victim say hello to
whomever he was talking to before hanging up. After the call,
the defendant ordered her to undress again and made her perform
oral sex on him. He also penetrated her from behind and
vaginally while on her back.
The defendant told her to get dressed, tied her hands and
feet, gagged her mouth with a sock, and hog-tied the victim
again with her hands behind her back. The defendant said he
"would give her [ten] minutes," then telephoned for a taxicab
for himself. After he left, the victim was able to untie
herself and unlock the door, leaving the apartment in terror and
running out into the street and to a Dunkin' Donuts where she
begged for help. It had been approximately two and one-half
hours since the ordeal began.
Worcester police and an ambulance responded, and the victim
gave police a detailed description of her assailant. At the
hospital, a rape kit produced seminal fluid from vaginal,
rectal, and oral swabs taken from the victim. Her blood tested
positive for cocaine metabolites, and a physical examination
showed bruises on the victim's wrists, ankles, arms, posterior,
6
and back. Among other evidence, investigators recovered
fingerprints matching the victim's at the defendant's parents'
apartment and corroborated other details from the victim's
account. The next day she identified the defendant as the
perpetrator from a ten-person photographic array.
The defendant was arrested on June 28, 2002. A Worcester
County grand jury returned indictments on September 13, 2002,
charging him with one count of aggravated kidnapping, G. L.
c. 265, § 26; eleven counts of aggravated rape, G. L. c. 265,
§ 22 (a); one count of indecent assault and battery, G. L.
c. 265, § 13H; one count of assault with the intent to rape,
G. L. c. 265, § 24; three counts of drugging a person for the
purpose of sexual intercourse, G. L. c. 272, § 3; six counts of
assault and battery by means of a dangerous weapon (three with
the needle and three with the gag), G. L. c. 265, § 15A (b); one
count of assault and battery, G. L. c. 265, § 13A; one count of
burglary, G. L. c. 266, § 14; and one count of threatening to
commit a crime, G. L. c. 275, § 2.
At a plea hearing on March 10, 2003, the defendant admitted
to the facts above, and pleaded guilty to all charges after a
thorough colloquy. The judge (plea judge) heard recommendations
from the Commonwealth and defense counsel, and heard from the
defendant himself, before sentencing the defendant to various
concurrent sentences, with lead sentences of thirty-five to
7
sixty years for the aggravated rapes.1 Following other
postconviction proceedings, the defendant filed a motion to
withdraw his guilty pleas and for resentencing on December 13,
2016. A Superior Court judge (motion judge) denied the motion
on May 25, 2017, and this appeal followed.
2. Standard of review. "A motion to withdraw a guilty
plea is treated as a motion for a new trial under
Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001)."
Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 39
(2015), quoting Commonwealth v. Furr, 454 Mass. 101, 106 (2009).
We accept the facts found by the motion judge if supported by
the evidence and review a decision on such a motion "to
determine whether the judge abused [his] discretion or committed
a significant error of law." Commonwealth v. Resende, 475 Mass.
1, 12 (2016). "A judge has discretion to allow a defendant's
motion to withdraw his guilty pleas 'at any time if it appears
that justice may not have been done,'" Commonwealth v. Roberts,
472 Mass. 355, 360 (2015), quoting rule 30 (b), including if the
plea was not voluntary or intelligent. See Ubeira-Gonzalez,
supra at 41. The defendant bears the burden of proof on a
1 The sentences included community parole supervision for
life, pursuant to G. L. c. 265, § 45. That portion of the
sentences was vacated after the Supreme Judicial Court struck
down community parole supervision for life as set forth in § 45
as an unconstitutional violation of the separation of powers
doctrine. See Commonwealth v. Cole, 468 Mass. 294, 295, 308-309
(2014).
8
motion to withdraw a guilty plea and must "prove facts that are
'neither agreed upon nor apparent on the face of the record.'"
Id., quoting Commonwealth v. Comita, 441 Mass. 86, 93 (2004).
3. Aggravated rape and separate convictions. The
defendant argues that his convictions of aggravated kidnapping,
burglary, and six counts of assault and battery by means of a
dangerous weapon are duplicative as predicate offenses for eight
of the aggravated rape convictions. He further argues that the
remaining three aggravated rape convictions must be reduced to
rape convictions for want of additional predicate offenses.
These arguments depend on the propositions that each aggravated
rape must have a separate predicate offense and that the only
available predicate offenses are those that were charged. We
disagree with both of those propositions.
A conviction of aggravated rape under G. L. c. 265,
§ 22 (a), requires that the rape be aggravated by serious bodily
injury, or being committed by a joint enterprise, or being
"committed during the commission or attempted commission" of a
specified aggravating offense.2 Here, the Commonwealth does not
2 In relevant part, G. L. c. 265, § 22 (a), provides:
"Whoever has sexual intercourse or unnatural sexual
intercourse with a person, and compels such person to
submit by force and against his will, or compels such
person to submit by threat of bodily injury and if either
such sexual intercourse or unnatural sexual intercourse
[1] results in or is committed with acts resulting in
9
argue that there was a joint enterprise or serious bodily injury
within the meaning of the statute, so each aggravated rape must
be supported by the commission of an aggravating offense.
Considering "the entire sequence of events," Commonwealth v.
Thomas, 89 Mass. App. Ct. 422, 429 (2016), the key inquiry is
"whether the aggravating acts" and the intercourse occurred
during "one continuous course of criminal conduct directed at
the victim." Id., quoting Commonwealth v. McCourt, 438 Mass.
486, 496 (2003). "Sexual intercourse is defined as penetration
of the victim," Commonwealth v. Enimpah, 81 Mass. App. Ct. 657,
659 (2012), quoting Commonwealth v. Lopez, 433 Mass. 722, 726
(2001), and separate acts of penetration during the same
criminal episode may be charged as separate rapes. See
Commonwealth v. Vega, 36 Mass. App. Ct. 635, 636-637, 640 (1994)
(defendant convicted of three counts of rape based on two
incidents of vaginal penetration and one incident of anal
penetration).
General Laws c. 265, § 22 (a), is intended "to protect
victims of violent sex offenders, by punishing more severely
perpetrators . . . who commit other felonies against the victim
serious bodily injury, or [2] is committed by a joint
enterprise, or [3] is committed during the commission or
attempted commission of an offense defined in [G. L.
c. 265, §§ 15A, 15B, 17, 19, or 26], [G. L. c. 266, §§ 14,
15, 16, 17, or 18,] or [G. L. c. 269, § 10,] shall be
punished . . . ."
10
in addition to the rape." McCourt, 438 Mass. at 495. The
Legislature chose the flexible term "committed during" in
describing the relationship between the rape and the predicate
offense. See id. at 493 (terms "committed with" and "committed
during" in § 22 [a] evinced legislative "intent to avoid a
limiting temporal distinction" between rape and aggravating
factors). Thus, "[t]he critical point is . . . whether the rape
victim . . . was subjected to other felonious conduct . . .
during the same criminal episode," Commonwealth v. Brown, 66
Mass. App. Ct. 237, 243 (2006), quoting McCourt, supra at 495,
and not whether each act of rape corresponds to a discrete
aggravating offense.3
For example, on the defendant's view, a person who raped a
single victim ten separate times during a single act of
kidnapping could be charged with only one count of aggravated
rape. Not only would it be impossible for a jury to logically
distinguish which rape was aggravated by the kidnapping, the
sentences would not match the severity of the crimes. The
second through tenth rapes would have been no less terrifying or
harmful to the victim, and each would have occurred during the
3 The felony-murder rule likewise "applies to killings that
occur 'in the commission of' the underlying felony," McCourt,
supra at 494, quoting G. L. c. 265, § 1, so that a single felony
may support multiple murder convictions. See, e.g.,
Commonwealth v. Rakes, 478 Mass. 22, 23, 33 (2017) (two murder
convictions predicated on single felony of armed robbery).
11
commission of a kidnapping. Thus, even though every element
under G. L. c. 265, § 22 (a), would have been established ten
separate times, the perpetrator could be punished for aggravated
rape only once. The Legislature did not intend such anomalous
results. See McCourt, 438 Mass. at 493.
Moreover, this case is not the first instance where a
single aggravating factor supports multiple convictions under
G. L. c. 265, § 22. See, e.g., Commonwealth v. Pearson, 87
Mass. App. Ct. 720, 721 & n.1 (2015) (affirming convictions of
five counts of aggravated rape supported by four predicate
kidnappings); Commonwealth v. Coleman, 30 Mass. App. Ct. 229,
234 (1991) (jury could have found defendant perpetrated "at
least two rapes as part of a joint venture and that the
essential elements of G. L. c. 265, § 22 [a], had been
established"); Commonwealth v. Madyun, 17 Mass. App. Ct. 965,
965 (1983) (affirming conviction of four counts of aggravated
rape predicated on one count of armed robbery).
The record here shows at least sixteen penetrations that
occurred during the commission of multiple kidnappings, multiple
acts of burglary, and multiple assaults and batteries by means
of a dangerous weapon -- all aggravating offenses enumerated
under G. L. c. 265, § 22 (a). As recognized above, because each
aggravating factor may support multiple aggravated rape
12
convictions, the facts admitted to at the plea colloquy
establish (at least) eleven aggravated rapes.
We also conclude that there were no duplicative convictions
to warrant the withdrawal of the defendant's guilty pleas to any
of the lesser offenses. Convictions of aggravated rape and of a
charged predicate crime may stand so long as there are
aggravating factors beyond the charged predicate offense. See
Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 347 (2008)
(aggravated rape conviction not duplicative of kidnapping
conviction where jury found two additional aggravating factors).
Contrast Commonwealth v. Donovan, 58 Mass. App. Ct. 631, 632 n.1
(2003) (vacating duplicative kidnapping conviction wholly
included in aggravated rape conviction). Cf. Commonwealth v.
Rivera, 464 Mass. 56, 81, cert. denied, 570 U.S. 907 (2013)
("Where, as here, the jury identify an uncharged crime . . . as
the predicate felony, there is no risk of a duplicative
conviction or sentence on that crime"). Given the number and
the ongoing nature of the offenses committed throughout the
assault here, the facts admitted to at the plea colloquy
supported a conclusion that each aggravated rape conviction was
supported by an uncharged aggravating offense. See id.4 Cf.
4 The defendant's aggravating offenses in this case include
numerous acts that were not charged in the indictments. (For
example, a second burglary occurred when the defendant reentered
the victim's apartment to bind and gag her, and the initial
13
McCourt, 438 Mass. at 493, 496 (statute defining aggravated rape
is sufficiently broad to predicate conviction on assault either
preceding or following rape); Brown, 66 Mass. App. Ct. at 243
("the offense of aggravated rape also may encompass a
confinement of the victim that takes place after the rape
itself, but during the same criminal episode").
4. Ineffective assistance of counsel at sentencing.
"Ineffective assistance of counsel requires 'behavior of counsel
falling measurably below that which might be expected from an
ordinary fallible lawyer,' which 'likely deprived the defendant
of an otherwise available, substantial ground of defen[s]e.'"
Ubeira-Gonzalez, 87 Mass. App. Ct. at 44, quoting Commonwealth
v. Saferian, 366 Mass. 89, 96 (1974). "[S]entencing is a
critical stage of the criminal proceeding at which [the
defendant] is entitled to the effective assistance of counsel."
Commonwealth v. Lykus, 406 Mass. 135, 145 (1989), quoting
Gardner v. Florida, 430 U.S. 349, 358 (1977). When making a
confinement in the victim's apartment and subsequent asportation
and confinement in the second apartment were separate acts of
kidnapping [among others].) An aggravated crime may be
supported by an uncharged predicate. See Commonwealth v.
Petrillo, 50 Mass. App. Ct. 104, 110-111 (2000), cert. denied,
532 U.S. 1030 (2001) (aggravated rape could have been predicated
on separate, uncharged kidnapping, but judge failed to so
instruct jury). Cf. Commonwealth v. Phap Buth, 480 Mass. 113,
119 (2018), quoting Commonwealth v. Stokes, 460 Mass. 311, 315
(2011) ("the felony on which a charge of felony-murder is
premised may be uncharged, so long as the evidence supports
it").
14
claim of ineffective assistance of counsel at sentencing, the
defendant has the burden of showing "that he would have received
a lighter sentence had his counsel conducted himself any
differently at sentencing." Commonwealth v. Fanelli, 412 Mass.
497, 503 (1992). Accord Commonwealth v. Giannopoulos, 34 Mass.
App. Ct. 937, 938 (1993), quoting Commonwealth v. Mamay, 407
Mass. 412, 425 (1990) ("In the absence of a showing that a
different result might have been attained, we cannot say that
counsel's performance was ineffective"). In reviewing plea
counsel's tactical decisions during the sentencing hearing, we
consider whether counsel's tactics were "manifestly
unreasonable." Commonwealth v. Kolenovic, 478 Mass. 189, 193
(2017), quoting Commonwealth v. Degro, 432 Mass. 319, 332
(2000).
Here, defense counsel offered a lengthy, detailed
sentencing argument, taking up more than nine pages of
transcript, nearly three times as long as the prosecutor's
argument. Contrast Lykus, 406 Mass. at 138, 144-146 (counsel's
five-sentence argument at sentencing was ineffective);
Commonwealth v. Cameron, 31 Mass. App. Ct. 928, 930 (1991)
(sentencing argument consisting solely of "we place ourselves at
the mercy of the court" was ineffective). Counsel recounted the
physical abuse the defendant suffered from his father and the
sexual abuse the defendant suffered as a child, and suggested
15
these were the causes of the defendant's anger issues. He
argued that the crimes were the product of the defendant's
problems with drug use. He stated that the defendant had no
prior history of sexual offense. He stressed the defendant's
loving relationship with his daughter. Finally, he suggested
that the judge need not give a lengthy sentence, because the
defendant would be subject to community parole supervision for
life and to commitment as a sexually dangerous person, "unless
the [prosecutors] have an extremely good reason for not doing
so, such as remarkable improvement by him during his jail term."
Counsel argued that these last two factors meant that, if the
defendant were ever released, "he's simply not at that point
where he would be a danger to society." Contrast Osborne v.
Commonwealth, 378 Mass. 104, 113 (1979) (counsel failed to
present any mitigating factors other than defendant's alcohol
use but instead prayed for victim).
Counsel also presented the judge with a sexual offender
evaluation of the defendant reinforcing these themes. It stated
that the defendant "takes full responsibility for the sexual
assault against his victim" and that the defendant asserted he
had not committed any other rape (charged or uncharged). The
evaluation recounted the physical abuse from his father and the
sexual abuse that the defendant suffered as a child. The
evaluation described the defendant's problems with drug use.
16
The evaluation described the defendant's noncriminal sexual
interests and his lengthy relationship with the mother of his
daughter. Finally, the evaluation concluded that the defendant
had a "[h]igh moderate level of risk to re-offend" and a "[l]ow
to [m]oderate risk to reoffend sexually," and made numerous
recommendations to reduce those risks.
There was, no doubt, some risk in counsel's tactic of
exposing the horrors of the defendant's childhood and in arguing
that the possibility of commitment as a sexually dangerous
person permitted a shorter sentence. In light of the horrific
nature of the crimes, however, we cannot say that this strategy
was manifestly unreasonable -- or even unsuccessful. See
Commonwealth v. Caputo, 439 Mass. 153, 169-170 (2003) (where
judge was aware of mitigating factors, "defense counsel's
decision to offer a brief explanation of the defendant's
situation was not unreasonable"). See also Commonwealth v.
Wilson, 443 Mass. 122, 140 (2004) (counsel not ineffective where
"the brutality of the murders and the defendant's criminal
history would have overshadowed" mitigating factor).
Similarly, we see no ineffectiveness in counsel's failure
to produce additional mitigating evidence. As stated, counsel
presented considerable mitigating information, such as the
defendant's childhood, his lack of previous sexual offenses, his
remorse, and his loving relationship with his daughter. With
17
his postconviction motion, the defendant submitted numerous
letters that he suggests could have been presented at
sentencing. Much of the content of those letters, however,
recounts the defendant's commendable progress in the years since
sentencing, and thus was unavailable to plea counsel. The
information that would have been available at sentencing
discussed the defendant's childhood, problems with drug use and
anger, and loving relationship with his daughter and his
siblings. As these mitigating factors were all brought to the
plea judge's attention, the defendant has not shown that he
would have received a lighter sentence if counsel had acted
differently. See Mamay, 407 Mass. at 425 ("the judge was
exposed to a number of potential mitigating factors");
Giannopoulos, 34 Mass. App. Ct. at 938 (defendant failed to show
that, "had [testimony] been offered, [it] would have made a
significant difference in the result"). Contrast Lykus, 406
Mass. at 144-145 (counsel ineffective where, inter alia, he
failed to present evidence of four mitigating factors).
Accordingly, the defendant has failed to show that counsel was
ineffective at sentencing.
5. Ineffective assistance of counsel in advice regarding
plea. Where, as here, "a claim of ineffective assistance is
directed to counsel's representation incident to a guilty plea,
the second prong of the Saferian test requires a defendant to
18
show 'that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial.'" Commonwealth v. Pike, 53
Mass. App. Ct. 757, 762 (2002), quoting Hill v. Lockhart, 474
U.S. 52, 59 (1985). In this regard, the absence of an affidavit
from plea counsel, without a description of unsuccessful
attempts to secure such an affidavit, is conspicuous. See
Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 640-641 (2007).
Contrast Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551
(2014) (defendant may defeat adverse inference from absence of
plea counsel affidavit by filing "affidavits attesting to plea
counsel's lack of cooperation"). Instead, the defendant's
claims of ineffectiveness prior to the sentencing are supported
only by his own affidavit and the fact that plea counsel was
suspended indefinitely from the practice of law five years after
the plea.5 The defendant has failed to meet his burden of
showing ineffective assistance of counsel.
First, the defendant has failed to demonstrate that any
conduct by counsel rendered his plea unintelligent or
5 Counsel was disciplined for misconduct relating to several
civil matters. This misconduct was unrelated to counsel's
representation of the defendant and had no bearing on counsel's
conduct in this matter; neither does it demonstrate any
prejudice as a result. See Commonwealth v. McGuire, 421 Mass.
236, 238-240 (1995). Cf. Commonwealth v. Dahl, 430 Mass. 813,
818 (2000) (no prejudice resulted from other demands on
counsel's time).
19
involuntary. See Ubeira-Gonzalez, 87 Mass. App. Ct. at 41. The
plea judge informed the defendant twice that he faced no less
than twenty-five years in State prison for kidnapping and sexual
assault, and likewise informed him of the maximum sentences
attached to the other charged offenses. The defendant
repeatedly affirmed his understanding of the charges and the
consequences he faced in pleading guilty. He affirmed that
defense counsel had described the elements of the charged
offenses, fully discussed the case and the consequences with
him, and explained the defendant's options available through
trial. Moreover, the defendant affirmed that no one, including
his attorney, had forced, threatened, or otherwise induced him
to plead guilty. See Commonwealth v. Bolton, 92 Mass. App. Ct.
469, 474-475 (2017) (rejecting ineffectiveness claim where
defendant stated he understood sentencing and made guilty plea
without pressure or coercion). The motion judge was not
required to credit any claims to the contrary in the defendant's
self-serving affidavit. See Commonwealth v. McWilliams, 473
Mass. 606, 621 (2016). Accord Commonwealth v. Lys, 91 Mass.
App. Ct. 718, 722 (2017) ("the absence of an affidavit from the
defendant's plea counsel without an explanation why such an
affidavit could not be obtained is a negative factor in the
assessment of the credibility of the affidavit submitted by the
defendant"); Ubeira-Gonzalez, supra at 41 (defendant's "own
20
self-serving affidavits" insufficient to support motion to
withdraw guilty pleas). Without credible evidence otherwise,
the defendant's statements at colloquy are conclusive of the
validity of his guilty pleas. See Bolton, supra (defendant's
sworn statements at colloquy determinative over self-serving
affidavits on motion to withdraw guilty plea).
The defendant's remaining claims on the basis of plea
counsel's conduct are unpersuasive for the same reason. See
Commonwealth v. Yardley Y., 464 Mass. 223, 231 (2013)
(affidavits inadequate to support defendant's assertions on
motion to withdraw plea). There is no credible evidence to
establish anything "manifestly unreasonable" about counsel's
advice in this case. Commonwealth v. Lang, 473 Mass. 1, 14
(2015), quoting Commonwealth v. Acevedo, 446 Mass. 435, 442
(2006). To the contrary, it was indisputable that the defendant
was guilty of the assault described at sentencing, and the
defendant gave his express approval of counsel's representation.
See Bolton, 92 Mass. App. Ct. at 474-475. Given the severity of
the charges and the strength of the Commonwealth's case, there
is nothing beyond his own affidavit to suggest the defendant
would not have pleaded guilty but for counsel's conduct. See
Pike, 53 Mass. App. Ct. at 762-763. The defendant failed to
raise a "substantial issue" on the matter and is not entitled to
an evidentiary hearing. Bolton, supra at 475 n.8. Accordingly,
21
the defendant is not entitled to withdraw any of his guilty
pleas; nor is he entitled to resentencing for his convictions.
6. Conclusion. The order denying the defendant's motion
to withdraw his guilty pleas and for resentencing is affirmed.
So ordered.