This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the order denying his motion to withdraw his guilty plea, advanced through a motion for a new trial. As grounds for the motion, the defendant alleged newly discovered evidence and ineffective assistance of counsel. Absent constitutional error, the denial of a motion for a new trial should not be reversed unless " it appears that justice may not have been done." Commonwealth v. Rosario, 460 Mass. 181, 195, 950 N.E.2d 407 (2011), citing Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). We discern no abuse of discretion in the motion judge's denial of the defendant's motion and affirm the order.
As a threshold matter, we observe that the defendant failed to establish either that the proffered evidence was " newly discovered [or] that it casts real doubt on the justice of the conviction." Commonwealth v. Grace, 397 Mass. 303, 305, 491 N.E.2d 246 (1986). Prior to the date of his plea, the defendant knew the four individuals who later submitted affidavits on his behalf, how to contact them, their relationships to the victim, and their potential knowledge of material evidence. That he did not know specifically what their testimony would be does not render the evidence newly discovered; the statements could have been obtained with reasonable diligence. See Commonwealth v. Toney, 385 Mass. 575, 581, 433 N.E.2d 425 (1982). We likewise reject the contention that, had it been known to a jury, the evidence contained in the affidavits " would probably have been a real factor in [a] jury's deliberations." Commonwealth v. Grace, supra at 306. Assuming that the evidence would have been admissible at trial, the defendant has not shown how it would have materially aided his defense, particularly when the case against him was strong. See Commonwealth v. Ortiz, 393 Mass. 523, 537-538, 471 N.E.2d 1321 (1984).
The defendant's claim of ineffective assistance of counsel is barred by his " admi[ssion] in open court that he is in fact guilty of the offense[s] with which he is charged" because " a guilty plea, intelligently and voluntarily made, bars the later assertion of constitutional challenges to the pretrial proceedings." Commonwealth v. Berrios, 447 Mass. 701, 715, 856 N.E.2d 857 (2006) (citations omitted). In any event, he has not established that he received ineffective assistance in the plea proceedings. The defendant's plea counsel provided an affidavit identifying a tactical reason, which was not manifestly unreasonable, for his decision not to talk to the potential witnesses. See Commonwealth v. White, 409 Mass. 266, 273, 565 N.E.2d 1185 (1991). In light of the severity of the sentences the defendant faced and his criminal record, the defendant also did not show that it would have been reasonable for him to go to trial, even with the testimony of the additional witnesses. See Commonwealth v. Pike, 53 Mass.App.Ct. 757, 762-763, 762 N.E.2d 874 (2002).
Order denying motion for new trial affirmed.
Cohen, Green & Trainor, JJ.