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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 schoolaged 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.