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
22-P-1133
COMMONWEALTH
vs.
ANTHONY M. LEO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2007, the defendant, Anthony M. Leo, pleaded guilty to
four counts of aggravated rape (G. L. c. 265, § 22 [a]); one
count of breaking and entering in the daytime with the intent to
commit a felony and with the resulting infliction of fear upon a
lawful occupant (G. L. c. 266, § 17); two counts of larceny from
a building (G. L. c. 266, § 20); and one count of breaking and
entering in the daytime with the intent to commit a felony
(G. L. c. 266, § 18). Between 2016 and 2022, the defendant
filed three motions for a new trial all of which were denied.
His appeals of those orders have been consolidated in this
court. On appeal, the defendant argues, inter alia, that his
guilty pleas were not made knowingly and voluntarily, his plea counsel provided ineffective assistance of counsel, and he did
not receive a speedy trial. In addition, the defendant argues
the second motion judge1 erred in concluding that the defendant's
claims in his second motion for a new trial were waived by
virtue of his guilty plea. We affirm.
Discussion. "A motion to withdraw a guilty plea is treated
as a motion for a new trial pursuant to Mass. R. Crim. P.
30 (b)." Commonwealth v. Resende, 475 Mass. 1, 12 (2016). "[A]
judge should only grant a postsentence motion to withdraw a plea
if the defendant comes forward with a credible reason which
outweighs the risk of prejudice to the Commonwealth."
Commonwealth v. DeMarco, 387 Mass. 481, 486 (1982). "Like all
such motions, it is addressed to the sound discretion of the
trial judge . . . [and] will not be reversed unless it is shown
to be an abuse of discretion that produces a manifestly unjust
result." Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48
(1997).
1. Guilty plea. The defendant first argues that his
guilty pleas were not knowing and voluntary and that he was not
competent to enter the pleas. Specifically, he argues that he
1 The second motion judge heard both the defendant's second motion for a new trial and third motion for a new trial, which he treated as a motion for reconsideration of his denial of the defendant's second motion for a new trial.
2 was coerced into pleading guilty because he was threatened and
treated abusively by correctional staff during his pretrial
incarceration.
In determining that the defendant pleaded guilty knowingly
and voluntarily, the first motion judge did not credit the
defendant's claims regarding his treatment by correctional
staff.2 The judge found that the defendant had been inconsistent
with setting forth the specific details of the threats and found
that the defendant's failure to inform his plea counsel or plea
judge of the alleged threats was inconsistent with the
defendant's demonstrated knowledge of the law and judicial
processes. Instead, the judge found that the defendant's guilty
pleas resulted from "hearing the victim's testimony," the
defendant's belief that "the jury had already made up their
minds about his guilt," "the very substantial evidence against
him," and the defendant's desire to not hear the testimony of
his cousin, the victim's husband. Because the motion judge was
in the best position to evaluate the defendant's credibility,
and his findings and conclusions are well supported by the
record, we discern no abuse of discretion here. See
2 During the evidentiary hearings, which took place over eight separate dates, the defendant, his trial counsel, two psychologists, and a forensic psychiatrist testified.
3 Commonwealth v. Perkins, 450 Mass. 834, 854 (2008) ("we must
defer to [the motion judge's] assessment of witness credibility"
[citation omitted]).3
Similarly, the judge also acted within his discretion in
concluding the defendant was competent when he pled guilty. The
Commonwealth's expert testified that the defendant "did not
suffer from a condition that affected his decision-making
related abilities on the morning of [the plea]"; the motion
judge credited this testimony.4 The defendant's trial counsel
testified that the defendant fully participated in trial
strategy, and none of the defendant's eight prior attorneys
raised his competence as an issue. The motion judge also found
that the trial judge conducted a "thorough and complete
colloquy" before determining that the defendant was competent to
3 Because we agree with the first motion judge's determination that the defendant's guilty plea was made knowingly and voluntarily, and that defendant's plea counsel provided effective representation, see infra, the first motion judge did not err in determining that by pleading guilty, the defendant waived his claim that his right to a speedy trial was violated. See Commonwealth v. Fanelli, 412 Mass. 497, 500 (1992) ("A defendant's guilty plea, made knowingly, voluntarily and with the benefit of competent counsel, waives all nonjurisdictional defects in the proceedings prior to the entry of the guilty plea").
4 The expert, Dr. Fabian M. Saleh, observed the defendant for approximately eight and one-half hours over three sessions in April of 2017 and reviewed sixty-one legal and mental health documents concerning the defendant.
4 enter a guilty plea. See Commonwealth v. Hiskin, 68 Mass. App.
Ct. 633, 638-639 (2007) ("To assess the intelligence and
voluntariness of a defendant's plea, we necessarily rely on the
defendant's sworn responses to the judge's informed questions
made in the solemnity of a formal plea proceeding"). During the
colloquy, the defendant testified that he understood what he was
being accused of, admitted he was guilty of the allegations, and
demonstrated an awareness of the charges against him and the
potential maximum penalty for those charges. Thus, the record
demonstrates that the defendant "[had] sufficient present
ability to consult with his lawyer with a reasonable degree of
rational understanding . . . [and] a rational as well as factual
understanding of the proceedings against him" (citation
omitted). Commonwealth v. Goodreau, 442 Mass. 341, 350 (2004).
2. Ineffective assistance of counsel. The defendant next
argues that his plea counsel was ineffective, claiming that he
was unable to meaningfully participate in trial preparation with
her and that her trial strategy was deficient.
To prevail on his claim of ineffective assistance of
counsel, the defendant must show the following: (1) that
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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
22-P-1133
COMMONWEALTH
vs.
ANTHONY M. LEO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2007, the defendant, Anthony M. Leo, pleaded guilty to
four counts of aggravated rape (G. L. c. 265, § 22 [a]); one
count of breaking and entering in the daytime with the intent to
commit a felony and with the resulting infliction of fear upon a
lawful occupant (G. L. c. 266, § 17); two counts of larceny from
a building (G. L. c. 266, § 20); and one count of breaking and
entering in the daytime with the intent to commit a felony
(G. L. c. 266, § 18). Between 2016 and 2022, the defendant
filed three motions for a new trial all of which were denied.
His appeals of those orders have been consolidated in this
court. On appeal, the defendant argues, inter alia, that his
guilty pleas were not made knowingly and voluntarily, his plea counsel provided ineffective assistance of counsel, and he did
not receive a speedy trial. In addition, the defendant argues
the second motion judge1 erred in concluding that the defendant's
claims in his second motion for a new trial were waived by
virtue of his guilty plea. We affirm.
Discussion. "A motion to withdraw a guilty plea is treated
as a motion for a new trial pursuant to Mass. R. Crim. P.
30 (b)." Commonwealth v. Resende, 475 Mass. 1, 12 (2016). "[A]
judge should only grant a postsentence motion to withdraw a plea
if the defendant comes forward with a credible reason which
outweighs the risk of prejudice to the Commonwealth."
Commonwealth v. DeMarco, 387 Mass. 481, 486 (1982). "Like all
such motions, it is addressed to the sound discretion of the
trial judge . . . [and] will not be reversed unless it is shown
to be an abuse of discretion that produces a manifestly unjust
result." Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48
(1997).
1. Guilty plea. The defendant first argues that his
guilty pleas were not knowing and voluntary and that he was not
competent to enter the pleas. Specifically, he argues that he
1 The second motion judge heard both the defendant's second motion for a new trial and third motion for a new trial, which he treated as a motion for reconsideration of his denial of the defendant's second motion for a new trial.
2 was coerced into pleading guilty because he was threatened and
treated abusively by correctional staff during his pretrial
incarceration.
In determining that the defendant pleaded guilty knowingly
and voluntarily, the first motion judge did not credit the
defendant's claims regarding his treatment by correctional
staff.2 The judge found that the defendant had been inconsistent
with setting forth the specific details of the threats and found
that the defendant's failure to inform his plea counsel or plea
judge of the alleged threats was inconsistent with the
defendant's demonstrated knowledge of the law and judicial
processes. Instead, the judge found that the defendant's guilty
pleas resulted from "hearing the victim's testimony," the
defendant's belief that "the jury had already made up their
minds about his guilt," "the very substantial evidence against
him," and the defendant's desire to not hear the testimony of
his cousin, the victim's husband. Because the motion judge was
in the best position to evaluate the defendant's credibility,
and his findings and conclusions are well supported by the
record, we discern no abuse of discretion here. See
2 During the evidentiary hearings, which took place over eight separate dates, the defendant, his trial counsel, two psychologists, and a forensic psychiatrist testified.
3 Commonwealth v. Perkins, 450 Mass. 834, 854 (2008) ("we must
defer to [the motion judge's] assessment of witness credibility"
[citation omitted]).3
Similarly, the judge also acted within his discretion in
concluding the defendant was competent when he pled guilty. The
Commonwealth's expert testified that the defendant "did not
suffer from a condition that affected his decision-making
related abilities on the morning of [the plea]"; the motion
judge credited this testimony.4 The defendant's trial counsel
testified that the defendant fully participated in trial
strategy, and none of the defendant's eight prior attorneys
raised his competence as an issue. The motion judge also found
that the trial judge conducted a "thorough and complete
colloquy" before determining that the defendant was competent to
3 Because we agree with the first motion judge's determination that the defendant's guilty plea was made knowingly and voluntarily, and that defendant's plea counsel provided effective representation, see infra, the first motion judge did not err in determining that by pleading guilty, the defendant waived his claim that his right to a speedy trial was violated. See Commonwealth v. Fanelli, 412 Mass. 497, 500 (1992) ("A defendant's guilty plea, made knowingly, voluntarily and with the benefit of competent counsel, waives all nonjurisdictional defects in the proceedings prior to the entry of the guilty plea").
4 The expert, Dr. Fabian M. Saleh, observed the defendant for approximately eight and one-half hours over three sessions in April of 2017 and reviewed sixty-one legal and mental health documents concerning the defendant.
4 enter a guilty plea. See Commonwealth v. Hiskin, 68 Mass. App.
Ct. 633, 638-639 (2007) ("To assess the intelligence and
voluntariness of a defendant's plea, we necessarily rely on the
defendant's sworn responses to the judge's informed questions
made in the solemnity of a formal plea proceeding"). During the
colloquy, the defendant testified that he understood what he was
being accused of, admitted he was guilty of the allegations, and
demonstrated an awareness of the charges against him and the
potential maximum penalty for those charges. Thus, the record
demonstrates that the defendant "[had] sufficient present
ability to consult with his lawyer with a reasonable degree of
rational understanding . . . [and] a rational as well as factual
understanding of the proceedings against him" (citation
omitted). Commonwealth v. Goodreau, 442 Mass. 341, 350 (2004).
2. Ineffective assistance of counsel. The defendant next
argues that his plea counsel was ineffective, claiming that he
was unable to meaningfully participate in trial preparation with
her and that her trial strategy was deficient.
To prevail on his claim of ineffective assistance of
counsel, the defendant must show the following: (1) that
counsel's conduct fell "measurably below that which might be
expected from an ordinary fallible lawyer," and (2) that this
conduct "likely deprived the defendant of an otherwise
5 available, substantial ground of defence." Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). The first motion judge
determined that the defendant had adequate access to counsel
leading up to trial, that his plea counsel was not ineffective
in failing to request a competency hearing before his guilty
plea, and that plea counsel's failure to object to repeated
continuances that occurred prior to trial did not amount to
deficient representation. We discern no abuse of discretion.
First, as the motion judge noted, the defendant was
prevented from meeting with his plea counsel on Friday, March 9,
2007, and Saturday, March 10, 2007, prior to the start of his
trial on Monday, March 12, 2007. However, the defendant was
able to meet with his counsel twice on Sunday, March 11, and the
plea judge granted the defendant additional time to confer with
his counsel on the morning of Monday, March 12, prior to jury
empanelment. Thus, it was within the motion judge's discretion
to conclude the defendant was not denied access to counsel
because the defendant was provided "a reasonable opportunity to
seek and receive the assistance of [his attorney]." Procunier
v. Martinez, 416 U.S. 396, 419 (1974), overruled on other
grounds by Thornburgh v. Abbott, 490 U.S. 401, 413-414 (1989).
Second, as noted above, the defendant's competence to
change his pleas was well supported by testimony from the
6 Commonwealth's expert and the defendant's plea counsel, and from
the defendant's answers to an extensive colloquy conducted by
the plea judge. Because there was no evidence indicating that
the defendant was incompetent prior to changing his plea, the
defendant's plea counsel was not ineffective for failing to
advocate for a competency hearing. See Commonwealth v. Robbins,
431 Mass. 442, 448-449 (2000) (no competency hearing required
where no "substantial question of possible doubt" as to
defendant's competence [citation omitted]). See also
Commonwealth v. Carroll, 439 Mass. 547, 557 (2003) (failure to
pursue futile tactic is not ineffective assistance of counsel).
Third, we agree with the motion judge that the delays
leading up to the defendant's trial appear to have been caused
by the defendant's numerous changes of counsel, some of which
were at his request, and therefore defendant's plea counsel was
not ineffective for failing to object to continuances that were
granted prior to the start of her representation.
3. Waived claims. The defendant argues that the second
motion judge erred in concluding that a number of his arguments,
made for the first time in his second motion for a new trial,
were waived because the defendant the defendant failed to raise
them in his first motion for a new trial.
7 "Any grounds for relief not raised by the defendant in his
original or amended motion for a new trial are 'waived unless
the judge in the exercise of discretion permits them to be
raised in a subsequent motion, or unless such grounds could not
reasonably have been raised in the original or amended motion.'"
Commonwealth v. Roberts, 472 Mass. 355, 359 (2015), quoting
Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501
(2001). "The waiver rule applies equally to constitutional
claims that could have been, but were not raised." Commonwealth
v. Balliro, 437 Mass. 163, 166 (2002). We only review such
claims in "extraordinary cases where, upon sober reflection, it
appears that a miscarriage of justice might otherwise result"
(citations omitted). Commonwealth v. Watson, 409 Mass. 110, 112
(1991).
The defendant presented several claims in his second motion
for a new trial that could have been raised in his first motion
for a new trial, but because they were not, these claims are
waived.5 See Roberts, 472 Mass. at 359. In reviewing the second
motion judge's comprehensive and thoughtful decision, we
5 The waived claims include the defendant's objections to the appointment of his plea counsel, his plea counsel's alleged conflict of interest and ineffective trial strategy, the effect of plea counsel's purchase of sneakers for the defendant, the defendant's decision to plead guilty, and the ineffectiveness of defendant's postconviction counsel.
8 conclude he did not abuse his discretion in concluding that
either the defendant's claims were waived or, assuming for the
sake of argument they were preserved, the claims did not find
support in the record. Therefore, there was no substantial risk
of a miscarriage of justice. See Commonwealth v. Grace, 397
Mass. 303, 307 (1986).6
Judgments affirmed.
By the Court (Henry, Smyth & Toone, JJ.7),
Clerk
Entered: September 5, 2025.
6 The second motion judge denied the defendant's third motion for a new trial after concluding it was effectively a motion to reconsider that failed to present new evidence or raise new issues. Because the third motion for a new trial was filed more than eight months after the denial of the defendant's second motion, it was untimely, and denial of the motion was proper. See Commonwealth v. Hunt, 73 Mass. App. Ct. 616, 617 n.1 (2009) ("The motion for reconsideration was filed more than thirty days after the denial of the motion for new trial, which makes it untimely, and thus it was properly denied"). See also Commonwealth v. Gonsalves, 437 Mass. 1022, 1022 (2002) (judge may consider untimely motion for reconsideration only if request made "within a reasonable time").
7 The panelists are listed in order of seniority.