Opinion
No. 15–P–1124.
09-30-2016
COMMONWEALTH v. Antonio AVILEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On October 16, 2000, the defendant pleaded guilty to multiple offenses including forcible rape of a child under the age of sixteen, aggravated kidnapping and unlawful possession of a firearm. Approximately ten years later, he filed a motion for a new trial alleging ineffective assistance of counsel, which was denied. We subsequently affirmed the order of denial in an unpublished decision pursuant to our Rule 1:28. See Commonwealth v. Avilez, 82 Mass.App.Ct. 1104 (2012), further appellate review denied, 463 Mass. 1106 (2012), cert. denied, 133 S.Ct. 999 (2013). Thereafter, the defendant filed a second motion for a new trial in which he relied on the same arguments he advanced in support of his first new trial motion. That motion also was denied and the order of denial was affirmed in another unpublished decision. See Commonwealth v. Avilez, 85 Mass.App.Ct. 1115 (2014), further appellate review denied, 468 Mass. 1105, cert. denied, 135 S.Ct. 312 (2014).
On May 4, 2015, the defendant filed a third motion for a new trial. The motion was allowed with respect to one conviction, possession of a firearm, which the Commonwealth conceded was duplicative, and denied with respect to the remaining convictions. The defendant's appeal from the denial, in part, of his third new trial motion is now before us. For the reasons that follow, we affirm.
We review the decision to deny a motion for a new trial to determine whether the judge committed an error of law or abused his discretion. See Commonwealth v. Loring, 463 Mass. 1012 (2012). Here, the motion judge concluded that the issues raised by the defendant had already been litigated and determined in his first and second motions for a new trial and, therefore, the doctrine of direct estoppel prevented the defendant from obtaining another determination of his claims. See Commonwealth v. Rodriguez, 443 Mass. 707, 709–710 (2005).
We discern no error of law or abuse of discretion. In his third new trial motion, which was supported by the same affidavit submitted in support of the second motion for a new trial, the defendant claims that his attorney erroneously advised him regarding the length of the sentence the judge would impose on the charge of kidnapping. This precise claim was raised—and rejected—in both the first and second motions for a new trial. The defendant's argument that the prosecutor improperly amended the indictments was also raised and litigated in the prior new trial motions. As to these claims, the judge correctly determined that the doctrine of direct estoppel bars further litigation.
The defendant also argued, for the first time, that he is entitled to a new trial on the ground that his convictions are duplicative and, with respect to his conviction of aggravated kidnapping, he claimed that the sentence must be vacated under the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). These claims were available to the defendant and could have been raised in his first (or second) motion for a new trial. Accordingly, they are waived and our review is limited to determining whether there was an error that created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 293–294 (2002).
As regards his claim of duplicative convictions, the defendant claimed that all of the offenses arise out of the same course of conduct and are so closely related as to constitute only a single crime. The record does not support this argument. Contrary to the defendant's contention, the offenses were not predicated on the same conduct. As the Commonwealth notes in its brief, each offense was based on separate and distinct criminal acts which were described by the prosecutor at the plea hearing. The defendant admitted that he had committed each of these acts. Because multiple convictions and sentences are permissible where, as here, each conviction is premised on a separate criminal act, the convictions are not duplicative and, therefore, it was not error to deny the defendant's motion on this ground. See Commonwealth v. Vick, 454 Mass. 418, 435 (2009). See also Commonwealth v. Rodriguez, 83 Mass.App.Ct. 267, 273 (2013) (“There is no merit to the defendant's argument that the rape and the licking of the victim's breast were both part of a continuous stream of conduct occurring within a short time frame and governed by a single criminal design” [quotation omitted] ).
The rape charges (indictments 685 and 686) were based, respectively, on the defendant's penetration of the victim's mouth with his penis and the penetration of the victim's vagina with his tongue. Further, the defendant sexually assaulted the victim by touching her chest and by touching her vaginal area, which formed the basis of the kidnapping and sexual assault charge (indictment 687) as well as the indecent assault and battery charge (indictment 690). Finally, the defendant's conviction for armed assault with intent to rape (indictment 688) was predicated on his attempt to penetrate the victim's vagina with his penis.
Nor did the judge err in denying the defendant's motion on the ground that Apprendi v. New Jersey, supra, requires that the sentence imposed on his conviction of aggravated kidnapping be vacated. In Apprendi, the Court stated, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. The indictment at issue alleged that the defendant kidnapped and committed a sexual assault on a person while armed with a dangerous weapon, which carries a minimum sentence of twenty-five years in State prison. See G.L. c. 265, § 26. The defendant asserted that the sexual assault and dangerous weapon elements of the offense are “facts” or “enhancements” that increase the penalty for kidnapping beyond the statutory minimum of ten years in State prison and because a jury did not find beyond a reasonable doubt that the kidnapping involved a dangerous weapon and a sexual assault, the sentence, which exceeds ten years, must be vacated.
The defendant's argument misconstrues the holding in Apprendi. Apprendi does not apply where, as here, a defendant admits to the facts that increase the sentence. See Blakely v. Washington, 542 U.S. 296, 303 (2004) ( “[T]he'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant ” [emphasis original] [quoting from Apprendi, supra at 490] ). See also Commonwealth v. DePace, 442 Mass. 739, 742–743 (2004) (“The Apprendi case was not concerned with the sufficiency of a grand jury indictment”). Because the defendant knowingly and voluntarily admitted to facts which support the imposition of the statutory minimum sentence of twenty-five years, there was no error let alone a substantial risk of a miscarriage of justice.
The order denying, in part, the defendant's third motion for a new trial is affirmed.