Opinion
20-P-73
06-30-2021
COMMONWEALTH v. Heriberto RIVERA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted by a jury of unlawful possession of a firearm, unlawful possession of ammunition, and possession of cocaine with intent to distribute. He then pleaded guilty to so much of the firearm and ammunition indictments as alleged that he had previously been convicted of at least one violent crime or serious drug offense (predicate offense) as defined in the Massachusetts Armed Career Criminal Act (ACCA), G. L. c. 269, § 10G, making him subject to sentencing enhancements. He now appeals from his convictions and from the denial of his post-conviction motion to withdraw his guilty pleas and to correct illegal sentences. He argues that (1) his pretrial motion to suppress evidence should have been allowed because the manner by which police announced their presence while executing a search warrant was not reasonable; (2) the sentence imposed for possession of cocaine with intent to distribute was too lengthy; and (3) his prior convictions did not qualify as predicate offenses under the ACCA, and so the judge should not have imposed enhanced sentences. We affirm.
Background. The defendant was indicted for possession of a firearm without having a firearm identification (FID) card, after having previously been convicted of an ACCA predicate offense ( G. L. c. 269, §§ 10 [h ] & 10G); possession of ammunition without an FID card, after having previously been convicted of an ACCA predicate offense ( G. L. c. 269, §§ 10 [h ] & 10G); and possession of cocaine with intent to distribute ( G. L. c. 94C, § 32A [c ]). He filed a pretrial motion to suppress evidence, which was denied after a hearing. After a jury trial, he was convicted of the underlying offenses of unlawful possession of a firearm and unlawful possession of ammunition, and of possession of cocaine with intent to distribute. He then pleaded guilty to so much of the firearm and ammunition indictments as alleged ACCA level one sentencing enhancements, G. L. c. 269, § 10G (a ), and was sentenced on all three convictions to concurrent terms of nine to ten years in state prison. He moved to withdraw his guilty pleas and to correct illegal sentences; the motion was denied.
Motion to suppress. Based on testimony at an evidentiary hearing, the motion judge found as follows. Worcester police applied for and were granted a search warrant authorizing them to search a certain third-floor apartment (apartment). The search warrant directed that police were not authorized to enter the apartment without announcement. While conducting surveillance before executing the warrant on the afternoon of May 14, 2015, police saw the defendant leave the apartment building and get into a Chevrolet Avalanche, which was driven away by an individual whose license to operate a motor vehicle was suspended. Police followed the vehicle and tried to stop it; when it sped away near an elementary school, they abandoned the pursuit as unsafe. The police then returned to the apartment building to execute the search warrant.
Sergeant Matthew Early entered the apartment building and went to the third floor, with the rest of the entry team following at least ten feet behind him. He knocked three times on the apartment door and announced, "Worcester police, search warrant." He waited five to eight seconds, then signaled to the other officers waiting below him on the staircase. About two to three seconds later, other officers reached the apartment door. At Sergeant Early's signal, an officer struck the door with a battering ram.
After police entered the apartment, the defendant's sister and her male friend emerged from a bedroom about fifteen to twenty feet from the door. The two were disheveled and getting dressed; the man was pulling up his pants and fastening his belt. In another bedroom, police found a firearm, ammunition, cocaine, and personal papers of the defendant.
The trial evidence established that it was 7.89 grams of cocaine packaged in several bags.
In reviewing a ruling on a motion to suppress, "we accept the judge's subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing." Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). "We review independently the application of constitutional principles to the facts found." Commonwealth v. Ferreira, 481 Mass. 641, 653 (2019), quoting Wilson, supra.
In his motion to suppress, the defendant argued that police did not knock or announce their presence at all before forcing entry into the apartment. The motion judge found that police did announce their presence, crediting Sergeant Early's testimony and declining to credit that of the defendant's sister. "On a motion to suppress, ‘[t]he determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw the witnesses, and not this court’ " (citations omitted). Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). "Where there has been conflicting testimony as to a particular event or series of events, a judge's resolution of such conflicting testimony invariably will be accepted." Id., quoting Commonwealth v. Spagnolo, 17 Mass. App. Ct. 516, 517-518 (1984).
On appeal, the defendant argues that, even if police did knock and announce their presence, their conduct was not reasonable because they did not wait long enough before forcing entry into the apartment. The motion judge found that Sergeant Early "waited somewhere between seven and eleven seconds before entering the apartment having received no response from the occupants." The judge ruled that that interval was reasonable, citing to Commonwealth v. Bush, 71 Mass. App. Ct. 130, 134 (2008) (delay of five seconds). The police were not required to keep knocking until someone opened the door. See Commonwealth v. Antwine, 417 Mass. 637, 641 (1994) ; Commonwealth v. Herring, 66 Mass. App. Ct. 360, 365 (2006).
The defendant also maintains, for the first time on appeal, that the forced entry was unreasonable because the police knew that the defendant was not at the apartment, and so there was no threat of violence or risk of destruction of evidence. However, because the defendant did not raise this claim below, facts to support or refute it were not developed, and we will not consider it. See Commonwealth v. Rivera, 429 Mass. 620, 623 (1999) (where defendant argued below that police failed to knock and announce, he was not permitted to argue for first time on appeal that police did not have reasonable belief that he was in apartment). See also Bush, 71 Mass. App. Ct. at 135 (relying on facts known to police to determine whether reasonable for police to fear threat to safety). Accordingly, we conclude that there was no error in the judge's denial of the motion to suppress.
In any event, we discern no substantial risk of a miscarriage of justice on the present record. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002). The defendant's absence from the apartment did not remove entirely the risk of destruction of evidence by other occupants, whom the defendant could have telephoned for the purpose of enlisting their assistance in doing so.
Sentence for possession of cocaine with intent to distribute. The defendant argues that the sentence imposed on his conviction for possession of cocaine with intent to distribute was improper because it was "a substantial, and illegal, departure from the guidelines and [the] prosecutor's original recommended term[ ] [a]nd there is an inference that it was based on improper factors."
The firearm and ammunition convictions, to which the ACCA sentencing enhancement applied, each carried a state prison sentence of "not less than three years nor more than [fifteen] years," G. L. c. 269, § 10G (a ). The conviction for possession of cocaine with intent to distribute carried a possible sentence of "not more than [ten] years," G. L. c. 94C, § 32A (c ). In her sentencing memorandum, the prosecutor recommended a sentence of ten to twelve years on each of the ACCA convictions, and three to four years on the cocaine conviction, but at the sentencing hearing she argued that the judge should impose ten to twelve year sentences on all three convictions, because the defendant's criminal record included two prior state prison sentences and showed that he continued to commit crimes while on probation rather than "look[ing] for a job" or "go[ing] back to school." The judge sentenced the defendant on all three convictions to concurrent state prison terms of nine to ten years.
The defendant complains that the concurrent sentence imposed on the cocaine conviction exceeded the recommendation in the prosecutor's sentencing memorandum and "the guidelines." As set forth above, the sentences imposed were plainly permitted by the statutes enacted by the Legislature. "This court will consider a sentence only to determine if it is illegal or unconstitutional." Commonwealth v. Molino, 411 Mass. 149, 155 (1991). See Commonwealth v. Hogan, 17 Mass. App. Ct. 186, 187 (1983) ("Appellate courts have no general power to review the severity or leniency of an otherwise lawful sentence which is within the limits permitted by statute").
The defendant's brief apparently refers to the Advisory Sentencing Guidelines promulgated in 2018 by the Massachusetts Sentencing Commission. Those have not been "enacted into law," G. L. c. 211E, § 3 (a ) (1), and so the judge was not bound by them. See Commonwealth v. Laltaprasad, 475 Mass. 692, 696 (2016).
The Appellate Division of the Superior Court does have the authority to review the defendant's sentences, see G. L. c. 278, § 28B. It has dismissed the appeal of his sentences.
To the extent that the defendant contends that the judge based his sentence on improper criteria because the prosecutor mentioned his lack of employment and failure to further his education, we disagree. At sentencing, the judge stated that based on the defendant's prior criminal record and these convictions, he "has shown himself to be consistently and repeatedly ... a threat to other members of society by the possession of guns, and now drugs with the intent to distribute." The record contains no inkling that the judge considered any improper factor. See Commonwealth v. Plasse, 481 Mass. 199, 205 (2019) ("In fashioning an appropriate and individualized sentence that takes account of a defendant's personal history, a judge has discretion to weigh ‘many factors which would not be relevant at trial,’ including the defendant's behavior, background, family life, character, history, and employment"). See also Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993) (sentence "should reflect the judge's careful assessment of several goals: punishment, deterrence, protection of the public, and rehabilitation").
ACCA sentencing enhancement. After trial, the defendant pleaded guilty to so much of the firearm and ammunition indictments as alleged that his sentences were subject to enhancement because he had been previously convicted of crimes that qualified as ACCA predicate offenses. Those prior convictions were for assault with intent to kill and assault and battery by means of a dangerous weapon, both arising from his June 21, 2007 shooting of a named victim, the facts of which the prosecutor summarized during the plea colloquy for the ACCA sentencing enhancement. Questioned by the judge, the defendant admitted he had heard the prosecutor's recitation of the facts of the 2007 shooting, and that he "not only committed the acts that were described ..., but that [he] was found guilty ... on the assault with intent to kill and ... on the assault and battery with a dangerous weapon." The defendant acknowledged that by admitting to those acts, he was pleading guilty to the portions of the firearm and ammunition indictments that constituted ACCA sentencing enhancements.
The prosecutor stated that, after "partying" with the victim and his friends, the defendant went outside; when the victim came out, the defendant said something unintelligible, then raised a gun and shot him. The victim suffered a single gunshot wound to his bicep which entered his chest and became lodged in his spinal cord.
The defendant now claims that his ACCA sentencing enhancements could not be based on his prior convictions for assault with intent to kill or assault and battery by means of a dangerous weapon because those did not amount to "violent crime[s]" under the ACCA, G. L. c. 269, § 10G (e ). His claim is meritless, because by pleading guilty to the ACCA sentencing enhancements, he "waived any claim to the lack of sufficient evidence that he committed a ‘violent’ crime." Commonwealth v. Wentworth, 482 Mass. 664, 673 (2019), citing Commonwealth v. Cabrera, 449 Mass. 825, 831 (2007). As the court noted in Wentworth, supra at 675-676, had the defendant gone to trial on his ACCA enhancements, the Commonwealth would have had the burden to prove beyond a reasonable doubt that his prior convictions were for violent crimes. Thus, he misplaces his reliance on cases where defendants had jury-waived trials on their ACCA sentencing enhancements. See Commonwealth v. Ashford, 486 Mass. 450, 459-460 (2020) ; Commonwealth v. Eberhart, 461 Mass. 809, 818-819 (2012).
As to the defendant's claim that his ACCA sentencing enhancement was improperly based on two predicate offenses arising out of the same prior prosecution, we note as follows. He pleaded guilty to so much of his firearm and ammunition indictments as alleged that each was subject to an ACCA level one sentencing enhancement; that required proof of only a single predicate offense, G. L. c. 269, § 10G (a ). The ACCA defines a "violent crime" as one that "(i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another...." G. L. c. 140, § 121. Based on the facts of the 2007 shooting to which the defendant admitted and which resulted in his convictions for assault with intent to kill and assault and battery by means of a dangerous weapon, at least one of those crimes sufficed as an ACCA predicate offense. See Wentworth, 482 Mass. at 677 (concluding assault and battery satisfied force clause based on facts admitted by defendant during plea). In denying the defendant's motion to withdraw his guilty plea and correct an illegal sentence, the judge focused on the conviction for assault and battery by means of a dangerous weapon as the predicate ACCA offense.
For those reasons, we discern no error, and decline the defendant's request that the case be remanded for resentencing. See G. L. c. 269, § 10G (a ). Cf. Commonwealth v. Baez, 480 Mass. 328, 331 (2018), quoting Commonwealth v. Resende, 474 Mass. 455, 468-469 (2016) ("best interpretation of ACCA is one that ‘reflects and implements the principle that penal discipline can have [or should have] a reforming influence on an offender, with enhanced consequences if prior convictions and sentences do not have such an effect’ ").
Judgments affirmed.
Order denying motion to withdraw guilty plea and correct sentence affirmed.