Opinion
No. 12–P–1204.
2013-09-24
COMMONWEALTH v. Richard ASADOORIAN.
By the Court (HANLON, BROWN & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 1993, after a jury trial, the defendant was convicted of kidnapping, assault by means of a dangerous weapon (a handgun), assault and battery, threats, operating to endanger, and two counts of aggravated rape. He was sentenced to two concurrent terms of nine to twelve years on the aggravated rape convictions
; four to five years concurrent on the conviction of assault by means of a dangerous weapon; two and one-half years concurrent in a house of correction on the assault and battery conviction; and, on the kidnapping conviction, a term of nine to ten years, from and after the other sentences, suspended during a four year period of probation.
In 1994, the Appellate Division of the Superior Court increased the sentences on the defendant's aggravated rape convictions to concurrent terms of twelve to twenty years.
The judgments were upheld in this court. See Commonwealth v. Asadorian, 44 Mass.App.Ct. 1108 (1998) (“Judgments affirmed. Order denying motion for a new trial affirmed”). See also Commonwealth v. Asadorian, 54 Mass.App.Ct. 1116 (2002) (“Order denying second motion for a new trial affirmed”); Asadoorian v. Commonwealth, 440 Mass. 1026 (2003) (G.L. c. 211, § 3, petition properly denied by a single justice of that court).
In 2012, the defendant moved to correct his sentence, citing Mass . R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), and arguing that, because kidnapping and assault by means of a dangerous weapon were the aggravating factors submitted to the jury on the aggravated rape charges, the judge could not impose a sentence on either of those two convictions.
The trial judge denied the motion and the defendant appealed.
In his instructions to the jury, the judge defined aggravated rape as follows: “An aggravated rape, ladies and gentleman, under our law is a rape that is committed during the commission or attempted commission of either an assault with a dangerous weapon or during the commission or attempted commission of a kidnapping.”
Discussion.
Kidnapping. We are guided by the holding in Commonwealth v. Robinson, 24 Mass.App.Ct. 680 (1987), where the defendant was indicted for aggravated rape, assault and battery by means of a dangerous weapon, armed robbery, and entering a building with intent to commit a felony. In that case, we said, because only one of the latter three offenses was necessary to support the aggravated rape charge, the judge properly could select one of the offenses (there, the assault and battery charge) and impose a consecutive sentence on that offense. See id . at 688. Similarly, in this case, the judge imposed a consecutive sentence on the kidnapping charge, relying on the guilty verdict on the assault by means of a dangerous weapon charge to supply the aggravating factor necessary for the aggravated rape conviction. As the jury found the defendant guilty on both underlying charges, the decision of which charge to choose for the consecutive sentence was a matter for the judge to determine.
The Commonwealth argues that the defendant has waived his right to postconviction relief because he was not imprisoned at the time he filed the motion. See Mass.R.Crim.P. 30(a) (“Any person who is imprisoned ... may ... file a written motion requesting the trial judge ... to correct the sentence ...”). See also Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000). While the defendant agrees that, at least at the time of this appeal, he had completed the committed portion of his sentence, he remained on probation on the kidnapping charge, with the possibility of further incarceration in the event a violation was found later. For this reason, we address the merits of his argument on that charge.
The cases cited by the defendant are distinguishable. In each, there was only one offense that the jury could have regarded as an aggravating factor. See Commonwealth v. Petrillo, 50 Mass.App.Ct. 104, 110–111 (2000) (conviction for underlying aggravating crime of kidnapping vacated where, based on the judge's instructions, it was the sole aggravating factor for the defendant's aggravated rape conviction); Commonwealth v. Sa, 58 Mass.App.Ct. 420, 427 (2003) (same). Contrast Commonwealth v. Dykens, 438 Mass. 827, 840–841 (2003) ( three separate aggravating factors ); Commonwealth v. Wilcox, 72 Mass.App.Ct. 344, 347 (2008) (same). Cf. Commonwealth v. Rodriguez, 83 Mass.App.Ct. 267, 274 (2013). There was no error.
Assault by means of a dangerous weapon. The defendant also argues that it was error to impose a concurrent sentence on the assault by means of a dangerous weapon conviction and that, because he has already completed that sentence, “there is nothing that can be done to correct this sentence in this forum, other than this Court's appropriate acknowledgement of the unconstitutional and inappropriate nature of the sentence.” We are not persuaded.
Although double jeopardy protects against multiple punishments for the same offense, Commonwealth v. Leggett, 82 Mass.App.Ct. 730, 734 (2012), here, the challenged sentence ran concurrently with the aggravated rape sentence and both sentences have been served. The defendant did not suffer any additional punishment; the concurrent sentence for assault and battery by means of a dangerous weapon was essentially “absorbed” within the sentence for aggravated rape. Commonwealth v. Burden, 48 Mass.App.Ct. 232, 235 (1999). See Commonwealth v. Monsen, 377 Mass. 245, 251 (1979). (“[A sentence to run concurrently has] no practical consequence to the defendant, and no injustice inheres in our letting the verdicts and sentences stand”).
Order denying motion to correct sentence affirmed.