NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-918

COMMONWEALTH

vs.

COREY HUTCHINS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order of a Superior Court 

judge denying his motion to withdraw his guilty pleas to a 

series of firearms and property crimes. We reject the 

defendant's first argument, that his plea counsel rendered 

ineffective assistance when he failed to move to dismiss either 

four counts of unlawful possession of a large capacity feeding 

device or four counts of unlawful possession of a firearm on the 

grounds that his convictions of each of those offenses violated

double jeopardy principles. We are likewise unpersuaded by his 

second contention that the evidence presented in the course of 

the plea colloquy was insufficient to support the defendant's 

convictions. Accordingly, we affirm.

Background. We summarize the relevant procedural history. 

In April 2015, the defendant was indicted in the Superior Court 
2

for twenty crimes: two counts of trafficking in firearms, G. L. 

c. 269, § 10E (1); three counts of unlawful possession of a 

firearm, G. L. c. 269, § 10 (a); six counts of unlawful 

possession of a firearm, G. L. c. 269, § 10 (h); two counts of 

unlawful possession of ammunition, G. L. c. 269, § 10 (h); four

counts of unlawful possession of a large capacity feeding 

device, G. L. c. 269, § 10 (m); and three counts of receiving 

stolen property, G. L. c. 266, § 60. The following January, the 

defendant pleaded guilty to all twenty indictments and was 

sentenced.1 In April 2021, the defendant moved to vacate his 

pleas, pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 

Mass. 1501 (2001) (rule 30 [b]); the Commonwealth opposed the 

motion.2 After a nonevidentiary hearing, the judge denied the 

defendant's motion to withdraw his guilty pleas. This appeal 

followed.

1 In each instance, the defendant was indicted as a habitual 

offender under G. L. c. 279, § 25 (a); counts three through 

thirteen charged the defendant as a prior offender with three 

serious drug convictions. See G. L. c. 269, § 10G (c). As part 

of the defendant's plea, the habitual offender enhancements were 

dismissed and the § 10G enhancements were reduced. See G. L. 

c. 269, § 10G (b). The sentencing enhancements are not at issue 

in this appeal.

2 The Commonwealth did, however, concede that the defendant's 

sentences on counts three through thirteen were illegal in light 

of Commonwealth v. Resende, 474 Mass. 455, 469-470 (2016). The 

defendant was resentenced on those convictions, and the

sentencing decisions are not part of this appeal.
3

Discussion. 1. Standard of review. In moving to withdraw 

his guilty pleas, the defendant properly relied on rule 30 (b), 

governing motions for new trial. See Commonwealth v. Fernandes, 

390 Mass. 714, 715 (1984). We review a judge's decision on a 

motion for new trial "to determine whether there has been a 

significant error of law or other abuse of discretion."

Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), quoting 

Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Allowance of 

the motion for a new trial is appropriate only in extraordinary 

circumstances. See Commonwealth v. Amirault, 424 Mass. 618, 

645-647 (1997). We are mindful that the applicant for the new 

trial carries the burden of proof to rebut the presumption of an 

original fair trial and the valid entry of a guilty plea. See 

Commonwealth v. Comita, 441 Mass. 86, 93-94 (2004). We accord 

substantial deference to the motion judge's ruling where he also 

presided over the defendant's pleas. See Commonwealth v. 

Sylvain, 473 Mass. 832, 835 (2016).

2. Ineffective assistance of counsel. The defendant

contends that his convictions for unlawful possession of a large 

capacity feeding device were duplicative of his convictions for 

unlawful possession of a firearm where the firearms in question 

depended on the use of the feeding devices for their ability to 

fire. In other words, the defendant argues that because the 

feeding devices were part of the firearms, he could not be 
4

separately convicted for unlawfully possessing both the firearm 

and the feeding device. For that reason, he argues that his 

trial counsel was ineffective in failing to move to dismiss one 

set of the indictments. Because we discern no double jeopardy 

problem with the convictions at issue, we are satisfied that the 

judge acted within his discretion in denying the defendant's 

motion on that theory.

"Where a new trial is sought based on a claim of 

ineffective assistance of counsel, the burden of proving 

ineffectiveness rests with the defendant." Commonwealth v. 

Montez, 450 Mass. 736, 755 (2008). To prevail, "the defendant 

bears the substantial burden of demonstrating both that (1) the 

conduct of his counsel fell 'measurably below that which might 

be expected from an ordinary fallible lawyer,' and (2) this 

conduct 'likely deprived the defendant of an otherwise 

available, substantial ground of defence.'" Commonwealth v. 

Henry, 88 Mass. App. Ct. 446, 452 (2015), quoting Commonwealth

v. Saferian, 366 Mass. 89, 96 (1974).

Contrary to the defendant's argument, there was no 

prohibition against separate convictions of unlawful possession 

of (1) a firearm under G. L. c. 269, § 10 (a) or § 10 (h), and 

(2) possession of a large capacity feeding device under G. L. 

c. 269, § 10 (m). "The traditional rule in Massachusetts, as 

embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871) [], 
5

and its progeny, is that 'a defendant may properly be punished 

for two crimes arising out of the same course of conduct 

provided that each crime requires proof of an element that the 

other does not.'" Commonwealth v. Vick, 454 Mass. 418, 431 

(2009), quoting Commonwealth v. Valliere, 437 Mass. 366, 371 

(2002). Such is the case here. The crime of unlawful 

possession of a large capacity feeding device requires an 

element not required to prove unlawful possession of a firearm 

under either § 10 (a) or § 10 (h) -- namely, that the defendant 

possessed "a large capacity feeding device."3 G. L. c. 269, § 10 

3 The defendant's reliance on Commonwealth v. Costa, 65 Mass. 

App. Ct. 227 (2005), is misplaced. In contrast to the facts of 

this case, the defendant in Costa was charged under § 10 (m) 

with unlawful possession of a large capacity weapon, not, as 

here, a large capacity feeding device, and with illegal 

possession of a firearm. See id. at 235. We concluded that 

where "[t]he only difference between the two violations is the 

'capacity' of the firearm," the defendant's convictions for both 

offenses were duplicative. Id. See G. L. c. 140, § 121 

(defining "large capacity weapon" to include "any firearm" 

meeting certain criteria). Commonwealth v. Rivas, 466 Mass. 184 

(2013), cited in the defendant's brief, is likewise 

distinguishable.
6

(m).4 See G. L. c. 269, §§ 10 (a),5 10 (h) (1).6 An element of 

possession of a firearm under § 10 (a) or § 10 (h) is possession 

of a "firearm," which is not an element of § 10 (m). G. L. 

c. 269, § 10 (m). See G. L. c. 140, § 121 (defining "firearm" 

and "large capacity feeding device" for purposes of G. L. 

c. 269, § 10). Neither offense is a lesser included offense of 

the other because each has an element the other does not. See 

Commonwealth v. Mazzantini, 74 Mass. App. Ct. 915, 916 (2009) 

(mere fact that large capacity feeding device was component of 

large capacity weapon did not preclude defendant from being 

convicted and sentenced for simultaneous possession of both 

items, where Legislature criminalized separate items 

disjunctively).7

4 The elements of unlawful possession of a large capacity feeding 

device are (1) knowing (2) possession (3) of a large capacity 

weapon or large capacity feeding device (4) without a valid 

license to carry firearms. See G. L. c. 269, § 10 (m).

5 The elements of unlawful possession of a firearm under § 10 (a) 

are (1) knowing (2) possession (3) of a firearm (4) "without 

. . . being present in or on his residence or place of business"

and (5) without complying with relevant licensing requirements. 

G. L. c. 269, § 10 (a).

6 To prove illegal possession of a firearm under § 10 (h) (1), 

the Commonwealth must show (1) ownership, possession, or 

transfer (2) of a firearm (3) without complying with the 

relevant licensing requirements. See G. L. c. 269, § 10 (h) 

(1).

7 To the extent the defendant here reads our decision in Costa to 

have turned on whether "the same feeding device was at issue for

both of those indictments," we do not agree. The Legislature 
7

Given our conclusion that neither possession of a large 

capacity feeding device nor possession of a firearm was a lesser 

included offense of the other, we also conclude that any motion 

to dismiss the indictments on the basis of double jeopardy would 

have been futile; it was not ineffective assistance for plea 

counsel not to have pursued a futile motion. See Commonwealth

v. Vieux, 41 Mass. App. Ct. 526, 527 (1996), cert. denied, 520 

U.S. 1245 (1997). The judge did not abuse his discretion in 

denying the defendant's motion to withdraw his pleas on this 

basis.

3. Plea colloquy. At the hearing, the prosecutor 

presented a summary of the evidence underpinning the twenty 

indictments to which the defendant pleaded guilty. The 

defendant contends that the facts recited by the prosecutor in 

support of the indictments for illegal possession of a large 

capacity feeding device and receiving stolen property were 

insufficient. While we consider it a close question that could 

have been avoided by a more fulsome recitation of the available 

separately criminalized the possession of a large capacity 

weapon without reference to whether the weapon was actually 

fitted with a high capacity feeding device. See G. L. c. 140, 

§ 121 ("'Large capacity weapon,' any firearm, rifle or shotgun: 

. . . (ii) that is semiautomatic and capable of accepting, or 

readily modifiable to accept, any detachable large capacity 

feeding device" [emphasis added]).
8

facts, we ultimately are not persuaded that the prosecutor's 

recitation was inadequate.

A judge shall not accept a plea of guilty unless the judge 

is satisfied that "there is a factual basis for the charge."

Mass. R. Crim. P. 12 (c) (5) (A), as appearing in 442 Mass. 1511 

(2004). "However, by pleading guilty a defendant waives his 

right to be convicted on proof beyond a reasonable doubt." 

Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015). 

"Therefore, the factual basis for a guilty plea need not satisfy 

the [Latimore] standard of review." Id. The plea judge need 

only determine "whether the evidence which [the judge] had 

heard, plus any information [the judge] has obtained in the plea 

hearing, is sufficient, when considered with reasonable 

inferences which may be drawn therefrom, to support the charge 

to which the defendant is offering a plea of guilty" (citation 

omitted). Id.

The defendant's challenge to the sufficiency of the 

evidence supporting his pleas to the indictments for unlawful 

possession of a large capacity feeding device focuses on the 

knowledge element of that offense. He contends that "there was 

no evidence that [he] knew beyond a reasonable doubt" that the 

devices were capable of holding more than ten rounds of 
9

ammunition.8 See G. L. c. 140, § 121 (defining "large capacity 

feeding device" as one "capable of accepting . . . more than ten 

rounds of ammunition"). Considering the question under the 

correct standard, we are not persuaded. As part of the 

colloquy, the judge heard that the defendant possessed the 

firearms and feeding devices at issue as an illegal seller of 

guns; from this, the judge could properly have inferred that the 

defendant was generally familiar with weapons that he sold, 

including their capacity. See Commonwealth v. Cassidy, 479 

Mass. 527, 537-538, cert. denied, 139 S. Ct. 276 (2018). While 

sparse, the facts read by the prosecutor, underscored by the 

defendant's familiarity with the elements of the offenses 

charged and his admission to them, were sufficient evidence on 

the challenged elements of the indictments for illegal 

possession of the large capacity feeding devices "to support the 

charge[s]." Armstrong, 88 Mass. App. Ct. at 758.

Although we consider it another very close question, we 

conclude likewise that the facts recited by the prosecutor 

provided the judge with a sufficient factual basis for the 

defendant's plea to three counts of receiving stolen property 

8 As we have noted, the judge was not required to find the 

elements of the offenses to which the defendant pleaded guilty 

beyond a reasonable doubt, only that there was "a strong factual 

basis for the plea" (citation omitted). Commonwealth v. Hart, 

467 Mass. 322, 326 (2014).
10

over $250. The judge heard that undercover police officers used 

a codefendant to broker the covert purchase of guns from the 

defendant on two separate occasions.9 In the first sale, the 

undercover officer bought three handguns of different calibers, 

including two guns equipped with large capacity feeding devices,

for a total of $1,950. In the second sale, an undercover

officer bought five additional guns, all of differing 

manufacture, including two large capacity feeding devices. The 

prosecutor told the judge that one of the guns sold in the first 

transaction, and two of the guns transferred in the second sale, 

had been reported stolen. After he was arrested, the defendant 

gave a statement to the police describing his sale of those 

firearms.

The defendant's awareness that three of the firearms he 

sold to the undercover police officers were stolen could be

inferred from the prosecutor's account that the defendant twice 

covertly sold an assortment of different guns to the police, the 

fact that the guns had been reported as stolen, and the 

defendant's admission in his contemporaneous statement to the 

police that he had sold those guns. See Commonwealth v. Quish, 

356 Mass. 718, 719 (1969) (even absent evidence of recent theft, 

judge could infer from quantity and nature of the goods with 

9 Inferentially, these sales took place at the defendant's home.
11

which defendant was apprehended that defendant knew goods were 

stolen). Similarly, the evidence that the defendant sold three 

of the stolen guns for a total of $1,950 permitted the judge to 

infer that the value per gun was at least $250. We are 

satisfied that the judge's acceptance of the plea was founded on 

a sufficient factual basis, see Armstrong, 88 Mass. App. Ct. at 

758, and that he did not err in later denying the defendant's 

motion to withdraw his guilty pleas based on the defendant's 

argument to the contrary.

4. Lack of evidentiary hearing on motion. While an 

evidentiary hearing is usually required on a motion under rule 

30 (b) where a "substantial issue" has been raised,10

Commonwealth v. Chatman, 466 Mass. 327, 334 (2013), "[such a] 

hearing may not be necessary . . . if the substantial issue 

raised is solely a question of law, or if the facts are 

undisputed in the record." Commonwealth v. Gordon, 82 Mass. 

App. Ct. 389, 395 (2012). As we have discussed, the defendant's 

claim of ineffective assistance was based on his claim that 

certain of his convictions offended double jeopardy. That was a 

question of law that the judge properly resolved without a 

hearing. The defendant's remaining arguments were, necessarily, 

10 We accept the defendant's argument that a claim of ineffective 

assistance generally qualifies as "a substantial issue." 

Commonwealth v. Chatman, 466 Mass. 327, 334 (2013).
12

decided on the record of the plea colloquy, which was itself not 

disputed. There was no error in the judge's deciding the 

defendant's motion without holding an evidentiary hearing.

Order denying motion to 

withdraw guilty pleas

affirmed.

By the Court (Sullivan, 

Hand & Walsh, JJ.11),

Clerk

Entered: February 8, 2023.

11 The panelists are listed in order of seniority.