Opinion
11-P-526
02-24-2012
COMMONWEALTH v. ENZO RIVERS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The pro se defendant appeals from the denial of his motion to correct an illegal sentence. We affirm.
A grand jury returned an eleven-count indictment against the defendant on charges that included burning a dwelling house, armed assault with intent to murder, and home invasion. The defendant pleaded guilty to all counts. He was sentenced to serve concurrent sentences of incarceration on ten of the counts, and, on the eleventh, armed assault with intent to murder, to three years of probation to begin on release from incarceration.
The defendant challenges the legality of his sentence of probation on the grounds that the statute criminalizing armed assault with intent to murder, G. L. c. 265, § 18, does not expressly authorize probation as a form of punishment. Probation has its roots in early common law, Commonwealth v. Durling, 407 Mass. 108, 111 (1990), but is currently governed by statute. General Laws c. 276, § 87, as appearing in St. 1974, c. 614, permits a Superior Court judge to place on probation 'any person before it charged with an offense or a crime . . . in any case after a finding or verdict of guilty.' There was no illegality in the sentence.
Order denying motion to correct illegal sentence affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.),