Opinion
No. 11–P–1500.
2012-09-28
COMMONWEALTH v. Edward D. DAVIS.
By the Court (TRAINOR, SMITH & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On November 18, 2002, the defendant pleaded guilty to several offenses against two different victims contained in two indictments. The offenses included aggravated rape, indecent assault and battery of a person fourteen years of age or older, assault and battery by means of a dangerous weapon, kidnapping, and open and gross lewdness.
On January 31, 2003, the plea judge sentenced the defendant. The judge first sentenced the defendant to an aggregate sentence of up to twelve years in State prison, with ten years of probation running from and after the completion of the prison sentence. Later on the same day, the judge called the defendant back into the courtroom and informed him that he (the judge) was revising the sentence for one of the kidnapping charges from a State prison sentence to a probationary term that would run concurrent with the State prison sentence on one of the aggravated rape convictions. The judge then imposed a condition of sex offender treatment both on the concurrent probationary term, and on the probationary term running from and after the prison sentence. The judge's modification did not increase the aggregate sentence, but it added the imposition of sex offender treatment for the entire duration of the sentence. On February 23, 2011, the defendant filed a motion to correct an illegal sentence, based on a double jeopardy theory, which summarily was denied by the plea judge. The defendant filed a timely notice of appeal. We affirm the denial of the motion.
Rule 29(a) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 899 (1979), authorizes a trial judge, on his own motion, to revise a defendant's sentence within sixty days of its imposition “if it appears that justice may not have been done.” See Commonwealth v. Goodwin, 458 Mass. 11, 16 (2010). Within this sixty-day period the defendant “should not [have] an expectation of finality in [his] sentence,” and the judge may increase a sentence within that time period. Aldoupolis v. Commonwealth, 386 Mass. 260, 274–275 (1982).
It is clear from the record that the reason for the plea judge's immediate modification of the sentence was to impose sex offender treatment. The judge's modification of the defendant's sentence structure to include the probation condition was lawful under Mass.R .Civ.P. 29(a).
For the foregoing reasons, and substantially for the reasons stated in the Commonwealth's brief at pages 13 through 23, we affirm the plea judge's denial of the motion to correct the sentence. To the extent that we have not addressed other specific claims made by the defendant, they “have not been overlooked.” Department of Rev. v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). We have considered them and have found them to be without merit. See ibid.
Order denying motion to correct sentence affirmed.