COMMONWEALTH vs. RICHARD L. GILBERT.
No. 17-P-967.
Appeals Court
October 3, 2018.
Worcester. May 10, 2018. - October 3, 2018. Present: Trainor, Ditkoff, & Wendlandt, JJ.
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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.
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 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
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.
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
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, 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,
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 sixty years for the aggravated rapes.1 Following other postconviction proceedings, the defendant filed a motion to withdraw his guilty
2. Standard of review.
“A motion to withdraw a guilty plea is treated as a motion for a new trial under
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
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
Moreover, this case is not the first instance where a single aggravating factor supports multiple convictions under
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
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 (2013), cert. denied, 570 U.S. 907 (2013) (“Where, as here, the jury identify an uncharged crime . . . as the predicate felony,
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 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
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 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. 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.
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 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 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
First, the defendant has failed to demonstrate that any conduct by counsel rendered his plea unintelligent or 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
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, 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.