Commonwealth v. Richard Dibiasio.

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-1021

COMMONWEALTH

vs.

RICHARD DIBIASIO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant pleaded guilty in February 2020 to stalking,

criminal harassment, and threatening to commit a crime. In

November 2020, he filed a motion for a new trial through which

he sought to withdraw his guilty pleas, and subsequently

appealed after that motion was denied. The order denying the

defendant's motion for a new trial was affirmed on appeal. See

Commonwealth v. DiBiasio, 101 Mass. App. Ct. 1108 (2022)

(DiBiasio I). In October 2022, the defendant filed a second

motion for a new trial, which was also denied. 1 In the instant

1 The defendant also filed a motion asking that his motion for a
new trial be heard by a judge other than the plea judge, which
was denied by the plea judge on the same day. We discern no
error in the denial of that motion. "To show that a judge
abused his discretion by failing to recuse himself, a defendant
ordinarily must show that the judge demonstrated a bias or
prejudice arising from an extrajudicial source, and not from
something learned from participation in the case." Commonwealth
appeal, he appeals that denial. Concluding that his claims are

barred by direct estoppel or otherwise waived, we affirm.

Discussion. "We review a decision on a motion for a new

trial for an abuse of discretion, meaning we consider whether

the motion judge's decision resulted from 'a clear error of

judgment in weighing the factors relevant to the decision such

that the decision falls outside the range of reasonable

alternatives.'" Commonwealth v. Jacobs, 488 Mass. 597, 600

(2021), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

"A judge's authority to grant a new trial pursuant to Mass.

R. Crim. P. 30 (b), [as appearing in 435 Mass. 1501 (2001),]

while broad, is limited by principles of direct estoppel."

Commonwealth v. Watkins (No. 1), 486 Mass. 801, 806 (2021),

quoting Commonwealth v. Sanchez, 485 Mass. 491, 498 (2020). "In

general, a defendant is directly estopped from obtaining review

of a claim where the Commonwealth demonstrates that the issue

was 'already litigated and determined . . . , that such

determination was essential to the . . . conviction, and that

the defendant had an opportunity to obtain review of the

v. Adkinson, 442 Mass. 410, 415 (2004), citing Liteky v. United
States, 510 U.S. 540, 551 (1994). The defendant has not made
any such showing here. See Erickson v. Commonwealth, 462 Mass.
1006, 1007 (2012) (prior adverse rulings not enough to require
recusal).

2
determination.'" Commonwealth v. Arias, 488 Mass. 1004, 1006

(2021), quoting Watkins (No. 1), supra. See Commonwealth v.

Rodriguez, 443 Mass. 707, 710-711 (2005).

Further, "[a]ny 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 Supreme Judicial Court has "recommended that

judges restrict the exercise of their discretion to review

previously unraised claims to 'those extraordinary cases where,

upon sober reflection, it appears that a miscarriage of justice

might otherwise result.'" Roberts, 472 Mass. at 359, quoting

Commonwealth v. Watson, 409 Mass. 110, 112 (1991).

With that, we turn to consider the legal 2 arguments

contained in the defendant's second motion for a new trial.

There he argued that (1) the judge's comments regarding the

defendant's mental illness led him to believe that he would not

be permitted to present a criminal responsibility defense at

2 The pro se defendant also wrote extensively in his motion about
his remorse and desire to return to work. While we note these
parts of the motion, we consider only his legal arguments.

3
trial, (2) the judge threatened to impose a five-year sentence

if he proceeded to trial, (3) the judge's insistence that he

proceed pro se if he could not procure counsel in time for trial

violated his right to counsel, and (4) his plea counsel was

ineffective by failing to file a motion to continue the trial so

that he would have time to procure trial counsel. 3 Concluding

that these arguments are all barred by either direct estoppel or

otherwise waived, we discern no abuse of discretion by the

motion judge in denying the motion.

First, the defendant's argument that his pleas were

involuntarily made due to comments that the judge made during

the plea colloquy is estopped. See Arias, 488 Mass. at 1006.

This argument was made by the defendant in his first motion for

a new trial and the voluntariness of his pleas was carefully

reviewed by a panel of this court in DiBiasio I. There, the

panel wrote that "the defendant posits that his guilty pleas

were involuntary because the plea judge 'suggested to the

defendant that he did not have a viable criminal responsibility

defense for trial, and that the trial court might not allow the

presentation of that defense.'" DiBiasio I, 101 Mass. App. Ct.

at 1108. It then concluded that "the court had already ruled

3 At times in his motion, the defendant also asserted that
earlier counsel, who had withdrawn prior to his plea, was
ineffective due to unprofessional conduct or noncompliance with
his directives.

4
that the defendant could present his criminal responsibility

defense." Id. As this argument has been made and decided

previously on appeal, the defendant was prohibited from raising

it again in his second motion for a new trial. 4 Id. See Arias,

488 Mass. at 1006.

The same reasoning applies to the defendant's argument that

the plea judge impermissibly threatened to impose a five-year

sentence of incarceration if he proceeded to trial. With

respect to that argument, the panel wrote that "[n]othing in

[the judge's statements] suggested any difference in the

sentence after trial; indeed, the discussion concerned the

sentence after a guilty plea." DiBiasio I, 101 Mass. App. Ct.

at 1108. Without more, we discern no abuse of discretion in the

motion judge's rejection of these arguments. See Jacobs, 488

Mass. at 600.

The defendant's remaining arguments, that he was

impermissibly required to defend himself pro se and that he

received ineffective assistance of counsel, could have been

raised in his first motion for a new trial as they deal

exclusively with facts well known to the defendant that occurred

4 On appeal, the defendant separately contends that the motion
judge's comments were particularly coercive because he
mistakenly believed that he was required to submit to a bench
trial. That argument is estopped where it is essentially a
repackaging of his argument in DiBiasio I. See Arias, 488 Mass.
at 1006.

5
prior to his first motion for a new trial in October 2020. The

arguments are accordingly waived, and the judge did not abuse

his discretion by rejecting them. See Roberts, 472 Mass. at

359. 5

Orders denying second motion
for a new trial and motion
to recuse affirmed.

By the Court (Desmond, Hand &
Hodgens, JJ. 6),

Clerk

Entered: December 4, 2023.

5 Although the defendant argues that the motion judge should have
held an evidentiary hearing to allow him to develop evidence in
support of these claims, he does not suggest that he could
produce evidence that would overcome the restraint of estoppel
or waiver.
6 The panelists are listed in order of seniority.

6