9 Mass. App. Ct. 886

April 4, 1980

The appeal is from the denial of the defendant's amended alternative motion (originally filed in 1976) for leave to withdraw his 1956 guilty pleas to, or for a new trial on, so much of an indictment for murder as alleged murder in the second degree and a companion indictment for sodomy. The argument that the defendant lacked the ability to comprehend what he was doing when he tendered his pleas is based in large part on testimony which obviously left the motion judge unimpressed (compare Commonwealth v. Curry, 6 Mass. App. Ct. 928 , 929 [1979]); it overlooks the fact that the defendant has never questioned his competence to stand trial. See Commonwealth v. Morrow, 363 Mass. 601 , 607 (1973); Commonwealth v. Leate, 367 Mass. 689 , 696 (1975). The argument based on Henderson v. Morgan, 426 U.S. 637 (1976), overlooks the significance of the specific facts recited in the defendant's confession, which he had heard the prosecution read to the jury at trial and which he admitted to his trial counsel was "correct" just before he tendered his pleas. See Commonwealth v. McGuirk, 376 Mass. 338 , 341 (1978), cert. denied, 439 U.S. 1120 (1979); Commonwealth v. Soffen, 377 Mass. 433 , 441 (1979); Osborne v. Commonwealth, 378 Mass. 104 , 107 (1979). Any argument that that confession

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had been coerced is precluded by the defendant's failure to appeal from the denial of his 1970 motion for a new trial, if not by the denial of his 1956 motion to suppress the confession. See Commonwealth v. Hamilton, 3 Mass. App. Ct. 554 , 556-559 (1975). We concur in the reasoning and conclusions set out in the comprehensive findings and rulings filed by the motion judge on April 24, 1979. Accordingly, so much of the order entered on that date as is directed to the indictments presently numbered 48750 and 71030 is affirmed.

So ordered.