Commonwealth v. Cumming

466 Mass. 467

995 N.E.2d 1094

COMMONWEALTH

v.Richard H. CUMMING.

SJC–11248.

Supreme Judicial Court of Massachusetts, Worcester.

Argued March 5, 2013.

Decided Sept. 27, 2013.

David M. Skeels, Committee for Public Counsel Services, Cambridge, for the defendant.

Ellyn H. Lazar–Moore, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

CORDY, J.

In the present appeal, we consider two double jeopardy challenges to a Superior Court judge's resentencing order following the judge's allowance of the defendant's motion to correct his sentences by vacating the requirement of community parole supervision for life (CPSL) pursuant to Mass. R.Crim. P. 30(a), as appearing in 435 Mass. 1501 (2001). The CPSL requirement had been illegally imposed years earlier as a component of the defendant's original sentences,¹ which also included concurrent periods of incarceration on ten separate indictments. We conclude that where, as here, the imposition of CPSL was part of an interdependent sentencing scheme, the judge had the authority to vacate and restructure the entire scheme, converting two of the concurrent sentences of incarceration into probationary terms, so as to effectuate the intent of the original sentencing judge. However, because an increase in the aggregate punishment would subject the defendant to double jeopardy, we also conclude that the maximum period of incarceration to which the defendant may be subject for violating his probationary term is the period of time between the defendant's resentencing on October 22, 2010, and the maximum period of confinement under the concurrent sentences originally imposed on the indictments on which he was resentenced to probation.

Background. On January 29, 2002, the defendant, Richard H. Cumming, was convicted on four indictments charging rape of a child, G.L. c. 265, § 23; four indictments charging indecent assault and battery on a child under the age of fourteen, G.L. c. 265, § 13B; and two indictments charging indecent assault and battery on a child over the age of fourteen, G.L. c. 265, § 13H. On the four indictments charging rape of a child and the four charging indecent assault and battery on a child under the age of fourteen, the judge sentenced the defendant to not less than six years and not more than ten years of incarceration. The judge also imposed CPSL. On the two indictments charging indecent assault and battery on a child over the age of fourteen, the judge sentenced the defendantto not less than four and not more than five years of incarceration. All the sentences were set to run concurrently. The defendant did not appeal.

On February 15, 2002, the defendant filed a motion to revise and revoke his sentences under Mass. R.Crim. P. 29(a), 378 Mass. 899 (1979). However, he did not include an affidavit or state any grounds to support the modification of his sentences, and his motion was denied without a hearing. ² See Commonwealth v. DeJesus, 440 Mass. 147, 152, 795 N.E.2d 547 (2003). Approximately eight and one-half years later, on September 1, 2010, the defendant filed a motion, under Mass. R.Crim. P. 30(a), to correct his sentences by vacating the judge's imposition of CPSL in light of this court's decision in Commonwealth v. Pagan, 445 Mass. 161, 173, 834 N.E.2d 240 (2005) (CPSL provision of G.L. c. 275, § 18, unconstitutionally vague as applied to “Category 1” and “Category 2” offenders). The defendant's motion was allowed on October 13, 2010. Thereafter, the Commonwealth moved that the defendant be resentenced on all of the indictments, and a hearing was scheduled. In response, the defendant filed a motion to dismiss the resentencing hearing for lack of jurisdiction, arguing that because the lawful portions of his sentences were final, modification of his sentences under Mass. R.Crim. P. 30(a) was limited to vacating the CPSL requirement.

On October 22, 2010, following a hearing, the judge vacated the defendant's remaining lawful sentences of incarceration and restructured the sentencing scheme. On the four indictments charging rape of a child and on two of the indictments charging indecent assault and battery on a child under the age of fourteen, the judge imposed identical sentences of not less than six years and not more than ten years of incarceration. On the two indictments charging indecent assault and battery on a child over the age of fourteen, the judge imposed sentences of not less than four and not more than five years of incarceration. All these sentences were to be served concurrently and were imposed nunc pro tunc to the original sentencing date. On the remaining two indictments charging indecent assault and battery on a child under the age of fourteen, for which the defendant had originally been sentenced to concurrent terms of from six to ten years of incarceration, the judge imposed ten years of probation to be served from and after the defendant's release from incarceration. The defendant appealed, and in an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed the order of resentencing on May 7, 2012. Commonwealth v. Cumming, 81 Mass.App.Ct. 1133, 2012 WL 1570116 (2013). In the interim, the defendant was released from prison on July 10, 2011, and apparently began his term of probation. We granted the defendant's application for further appellate review.

Discussion. The defendant makes two distinct double jeopardy challenges to his resentencing. We address each in turn.

1. Modification of sentences under Mass. R.Crim. P. 30(a). The defendant argues that at the time of the resentencing hearing, his sentences were final because he did not take a direct appeal and no valid motion ³ to revise and revoke the sentences under Mass. R.Crim. P. 29(a)⁴ had been filed within sixty days of the imposition of his sentences. See Commonwealth v. Goodwin, 458 Mass. 11, 19–20, 933 N.E.2d 925 (2010). Consequently, he contends that Mass. R.Crim. P. 30(a) provides the only jurisdictional basis for correcting his sentences, and the judge's authority to do so is limited to revoking the unlawful CPSL requirement. The defendant thus asserts that the judge's decision restructuring the final, lawful portions of his sentences violated his right to be free from double jeopardy.

“[T]he constitutional guarantee against double jeopardy protects a defendant not only against a second prosecution for the same offense after acquittal or conviction but also against ‘multiple punishments for the same offense.’ ” Commonwealth v. Goodwin, supra at 19, 933 N.E.2d 925, quoting Aldoupolis v. Commonwealth, 386 Mass. 260, 271–272, 435 N.E.2d 330, cert. denied, 459 U.S. 864, 103 S.Ct. 142, 74 L.Ed.2d 120 (1982), S.C.,390 Mass. 438, 457 N.E.2d 268 (1983). In this manner, “[t]he double jeopardy clause ‘ “represents a constitutional policy of finality for the defendant's benefit” in criminal proceedings.’ ” Commonwealth v. Goodwin, supra, quoting Aldoupolis v. Commonwealth, supra at 274, 435 N.E.2d 330. Accordingly, we stated in Commonwealth v. Goodwin, supra at 19–20, 933 N.E.2d 925, that “[a]fter a sentence is final, the time to revise and revoke under Mass. R.Crim. P. 29(a) having expired and any direct appeal having concluded, a defendant may not be sentenced again for that same conviction.”

At the hearing on the defendant's rule 30(a) motion, the judge ruled that the defendant should be “resentenced in totality ... because of the illegal sentence of the community parole supervision for life.” Plainly, the judge's decision to vacate the unlawful CPSL requirement was within his authority under rule 30(a) “to correct the sentence then being served upon the ground that [it] was imposed in violation of the Constitution or laws of the United States or of the Commonwealth of Massachusetts.” For the reasons that follow, we also conclude that the judge did not err by restructuring the “final” lawful portions of the defendant's sentences under rule 30(a), and as such, the defendant was not placed twice in jeopardy.

First, it was the defendant who filed the rule 30(a) motion to correct his sentences. This is significant because, although “[t]he double jeopardy proscription protects the defendant against governmental oppression, it does not ‘relieve a defendant from the consequences of his voluntary choice’ to invalidate his original punishment.” Commonwealth v. Leggett, 82 Mass.App.Ct. 730, 737, 978 N.E.2d 563 (2012), quoting United States v. Scott, 437 U.S. 82, 99, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). By challenging his original sentences, any expectation of finality the defendant may have had was exposed to some risk. Moreover, a defendant “does not have a reasonable expectation of finalityin any one part or element of [an interdependent] bundle of sentences, but rather, in the entirety of the scheme.” Commonwealth v. Leggett, supra at 736–737, 978 N.E.2d 563. See United States v. McClain, 133 F.3d 1191, 1193–1194 (9th Cir.), cert. denied, 524 U.S. 960, 118 S.Ct. 2386, 141 L.Ed.2d 752 (1998), and cases cited. By filing a motion to correct his unlawful sentence under rule 30(a), the defendant knowingly exposed himself to the possibility that his entire sentencing scheme might be restructured.

Second, it is clear that “[t]he [original sentencing] judge's belief that lifetime community parole supervision could be imposed influenced his decision as to the appropriate punishment for the defendant's ... convictions. The sentences imposed constituted an integrated package, each piece dependent on the other, which cannot be separated.” Commonwealth v. Renderos, 440 Mass. 422, 435, 799 N.E.2d 97 (2003). See Commonwealth v. Talbot, 444 Mass. 586, 597–598, 830 N.E.2d 177 (2005); Commonwealth v. Leggett, supra at 735, 978 N.E.2d 563. The judge's obvious intention that there be a lengthy period of postrelease supervision could easily have been accomplished by the judge imposing a...