Commonwealth v. Anthony M. Leo.

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.

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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.

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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

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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

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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.

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"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.

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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.

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