Opinion
18-P-291
03-07-2019
COMMONWEALTH v. DAUNTE BEAL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The underlying facts of the case stem from a 2008 shooting at a cookout in Dorchester, the details of which are more fully set forth in Commonwealth v. Beal, 474 Mass. 341 (2016), in which the Supreme Judicial Court vacated two of the defendant's convictions and additionally vacated the armed career criminal portion of his conviction of unlawful possession of a firearm. Id. at 354. In this appeal, the defendant contends that, following remand of the matter to the Superior Court, the second sentencing judge violated the common law rule set forth in Commonwealth v. Hyatt, 419 Mass. 815, 823 (1995), which provides that following a successful appeal, "when a defendant is again convicted of a crime or crimes, the second sentencing judge may impose a harsher sentence or sentences only if the judge's reason or reasons for doing so appear on the record and are based on information that was not before the first sentencing judge." We affirm.
The first sentencing judge, who had sentenced the defendant prior to his first appeal, had retired.
Background. Viewed as a total package, the original sentence imposed in 2011 by the first sentencing judge included a fourteen- to fifteen-year term of incarceration, followed by a four-year probationary term. As set forth supra, the Supreme Judicial Court vacated two of the defendant's convictions and additionally vacated the armed career criminal portion of his conviction of unlawful possession of a firearm. Upon remand, the defendant's appellate attorney timely filed a motion to revise and revoke his sentence, pursuant to Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016), but asked that the court not act upon the motion until the appointment of new trial counsel.
Thereafter, represented by new counsel, the defendant filed a motion for resentencing. On February 21, 2017, the second sentencing judge resentenced the defendant with the result that, viewed as a package, the sentence included a fourteen- to fifteen-year term of incarceration, but no probation. During the hearing on the resentencing, the second sentencing judge questioned whether he had discretion to alter the entire sentence as a package or was limited to altering only those counts specifically affected by the Supreme Judicial Court decision in Beal. Ultimately, the docket and the clerk's minutes of that date reflect that "[a]fter further review the Court . . . revokes resentencing of 2-21-17 subject to a further hearing." At the next hearing on June 14, 2017, the second sentencing judge, at the defendant's request to rule on the motion to revise and revoke, revised the sentence. Viewed as a total package, the revised sentence imposed in June 2017 included a fourteen- to fifteen-year term of incarceration, followed by a four-year probationary period.
Discussion. The defendant's sentence does not violate the common law rule set forth in Hyatt. As set forth above, prior to his successful appeal, the defendant was sentenced (as a package) to fourteen to fifteen years' incarceration followed by four years of probation. Following resentencing, the defendant's total package is identical. The defendant has not been punished for his successful appeal.
The defendant's actual complaint in this appeal apparently is that, in June 2017, the second sentencing judge revised and revoked the February 2017 sentence. When reviewing a judge's decision on a motion to revise and revoke a sentence, our review is for an abuse of discretion. Commonwealth v. Malick, 86 Mass. App. Ct. 174, 185 (2014), citing Commonwealth v. Derry, 26 Mass. App. Ct. 10, 13 (1988). Here, other than the aforementioned Hyatt argument, the defendant raises no claim that any such abuse occurred. In any event, the second sentencing judge explained the revised sentence was based on his agreement with the defendant's argument that he had discretion, both under the case law and in connection with the pending revise and revoke motion, to revise the whole sentencing package and was not limited to revising the counts directly affected by the appeal.
Citing Commonwealth v. Sallop, 472 Mass. 568, 570-571 (2015), the defendant posits a potential double jeopardy violation should the defendant violate the conditions of probation at some point in the future. However, "[t]here is no double jeopardy question involved where, within a limited period, a judge revises a sentence pursuant to statutory authority which existed at the time of original sentencing." Commonwealth v. Sitko, 372 Mass. 305, 314 (1977).
Order entered June 14, 2017, resentencing defendant affirmed.
By the Court (Hanlon, Lemire & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 7, 2019.