Opinion
11-P-640
11-02-2011
COMMONWEALTH v. KEVIN R. ROUGEAU.
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
There is no merit to the defendant's claims of error for substantially the reasons set forth in the Commonwealth's brief at pages five to eight. As the Commonwealth observes, unlike the circumstances of the first defendant in Commonwealth v. Bruzzese, 437 Mass. 606, 609 (2002), the defendant in the present case was given one suspended, or 'split-sentence,' and two probationary sentences. The judge therefore was not required to have the probationary part of the sentence run concurrently with the committed sentence; the two charges on which the defendant was sentenced to probation remained subject to imposition of the full sentence available for each charge upon any violation of the probationary conditions. See id. at 617-618.
There is no merit to the defendant's suggestion at oral argument that the three charges required concurrent sentences because they were based on a common set of facts. The defendant's suggestion appears to rely on the belief that imposition of consecutive sentences in such circumstances would violate principles of double jeopardy or effect the substantial equivalent of duplicative convictions. However, though arising from a common factual setting, each charge on which the defendant was convicted required proof of at least one element that the others did not. See Commonwealth v. Vick, 454 Mass. 418, 430-432 (2009).
Order revoking probation and imposing sentence affirmed.
Order denying motion to correct sentence affirmed.
By the Court (Green, Katzmann & Hanlon, JJ.),