Opinion
No. 11–P–1496.
2013-02-15
COMMONWEALTH v. Thomas E. ROBINSON.
By the Court (GRAHAM, GRAINGER & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of rape and assault with intent to rape, second offense. On the defendant's posttrial motion, these convictions were later adjudged duplicative as the assault charge is a lesser included offense of the former. The motion judge vacated the lesser sentence for rape, leaving undisturbed the more severe sentence for assault with intent to rape, second offense. The defendant now asserts that the judge's vacating of his lesser sentence was a “resentencing” in absentia, violating his right to an “allocation opportunity,” i.e., to be heard and present reasons for a lesser sentence.
The defendant brought a motion “for release from unlawful restraint” pursuant to Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001) “OR, in the alternative, to VACATE THE SENTENCE under indictment number 12061” (assault with intent to rape).
This claim was not presented below, and is not properly before us. See Commonwealth v. Murphy, 73 Mass.App.Ct. 57, 58 n. 4 (2008). Accordingly we decline to address it. Even were we to exercise our discretion to consider claims first raised in this appeal, it would not avail the defendant. The motion judge's consideration of his motions, and the action taken thereon, was not a sentencing or resentencing, and did not trigger the requirements of Mass.R.Crim.P. 28(b). We therefore also need not reach the ancillary and additional issue raised in the appeal, which is the underlying supposition that a resentencing, had one occurred, is constitutionally defective absent a hearing. See Hill v. United States, 368 U.S. 424, 428 (1962).
Judgment affirmed.
Order denying motion for release from unlawful restraint affirmed.