Opinion
11-P-109
10-05-2011
COMMONWEALTH v. DWAYNE CRUTHIRD.
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
The pro se defendant, Dwayne Cruthird, contends that he cannot receive consecutive sentences for his convictions of armed assault with intent to murder and possession of a firearm without a license because both offenses involve the same firearm and the same criminal episode. We reject this argument for substantially the reasons stated in the Commonwealth's brief at pages 6-12. A 'defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.' Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). Commonwealth v. Vick, 454 Mass. 418, 431 (2009). Here each crime requires proof of an element not common to the other. '[W]here, as here, neither crime is a lesser included offense of the other, multiple punishments are permitted even where the offenses arise from the very same criminal event.' Id. at 436. The judge also had the authority to impose consecutive as opposed to concurrent sentences for the separate offenses. See, e.g., Commonwealth v. Lucret, 58 Mass. App. Ct. 624, 628 (2003) (discussing 'sentencing judge's well-established discretion to fashion either a concurrent or consecutive sentence').
December 15, 2010, order denying motion for new trial affirmed.
By the Court (Kafker, Green & Grainger, JJ.),