Commonwealth v. Gilbert

• Decision Date: 03 October 2018
• Docket Number: No. 17-P-967.,17-P-967.
• Parties: COMMONWEALTH v. Richard L. GILBERT.
• Court: Appeals Court of Massachusetts

112 N.E.3d 1195

COMMONWEALTH

v.Richard L. GILBERT.

No. 17-P-967.

Appeals Court of Massachusetts, Worcester..

Argued May 10, 2018

Decided October 3, 2018

Edward C. Gauthier, IV, Greenfield, for the defendant.

Donna-Marie Haran, Assistant District Attorney, for the Commonwealth.

Present: Trainor, Ditkoff, & Wendlandt, JJ.

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 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 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 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.

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, 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 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, 23 N.E.3d 127 (2015), quoting Commonwealth v. Furr, 454 Mass. 101, 106, 907 N.E.2d 664 (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, 54 N.E.3d 521 (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, 34 N.E.3d 716 (2015), quoting rule 30 (b), including if the plea was not voluntary or intelligent. See Ubeira-Gonzalez, supra at 41, 23 N.E.3d 127. The defendant bears the burden of proof on a 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, 803 N.E.2d 700 (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...