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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.
