Opinion
No. 10–P–1111.
2012-07-10
COMMONWEALTH v. Michael GARNER.
By the Court (RAPOZA, C.J., COHEN & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, acting pro se, appeals from the denial of his fourth, fifth, and sixth motions for postconviction relief. In sum, the defendant seeks an order vacating a sentence imposed after his 1999 convictions of unlawful possession of both a firearm and ammunition, without a firearm identification card, in violation of G .L.c. 269, § 10( h ), and enhanced as prescribed by G.L.c. 269, § 10G( c ). We affirm.
Background. The defendant's convictions under G.L.c. 269, § 10( h ), which followed a bifurcated, jury-waived trial, arise from the same factual circumstance: his possession of a loaded handgun. He was then sentenced as an armed career criminal under G.L.c. 269, § 10G( c ), receiving concurrent prison terms of fifteen years to fifteen years and one day on each conviction. The defendant's appeal from the denial of his first motion for a new trial pursuant to Mass.R.Crim. P. 30, as appearing in 435 Mass. 1501 (2001), was consolidated (and the denial affirmed) with his direct appeal.
Commonwealth v. Garner, 59 Mass.App.Ct. 1111 (2003). The defendant did not appeal from the denial of his second new trial motion. This court affirmed the denial of the defendant's third new trial motion. Commonwealth v. Garner, 75 Mass.App.Ct. 1114 (2009). The defendant's present appeal involves the denial of three related pro se motions: his “Motion to Vacate Illegal Sentence and Release from Unlawful Restraint,” his subsequent motion to reconsider the denial of same, and his “Motion Requesting a Ruling.” Discussion. The basis of the defendant's latest request for postconviction relief is his claim that his sentences resulted from unconstitutional, duplicative indictments.
All of the defendant's motions for postconviction relief have been considered and denied by the original trial judge.
We consider (1) whether his sentence was illegal, (2) whether he waived any argument concerning the constitutionality of his indictments, and (3) whether, assuming he did not waive this claim, the indictments were constitutional.
The defendant raised this argument in his third motion for new trial. This court affirmed the denial of that motion, declining to consider the claim pursuant to Mass.R.A.P.16(a)(4), as amended, 367 Mass. 921 (1975).
1. Defendant's sentences. The defendant appears to challenge his sentences and convictions pursuant to Mass.R.Crim.P. 30( a ), as appearing in 435 Mass. 1501 (2001). Rule 30(a), however, “was not intended to provide an avenue for plenary appellate review. Instead, it was designed to enable defendants to challenge the legality or the technical basis of a sentence.” Commonwealth v. Christian, 429 Mass. 1022, 1023 (1999). A rule 30(a) motion is not to be used to invoke the elements of an ordinary appeal. Ibid. The concepts of an illegal sentence or an illegally-imposed sentence “presume that a defendant's conviction is in all ways valid and that only the sentence is in some manner defective.” Reporters' Notes to Rule 30(a), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1637 (LexisNexis 2011–2012). See Commonwealth v. Melo, 65 Mass.App.Ct. 674, 676 (2006).
Following his convictions for possession of both a firearm and ammunition without a firearm identification card in violation of G.L .c. 269, § 10( h ), the defendant faced sentencing enhancement pursuant to G.L.c. 269, § 10G( c ), because of his prior criminal record. As a result, § 10G( c ) required him to be “punished by imprisonment in the state prison for not less than 15 years nor more than 20 years.” The defendant's sentences fully comported with those statutory requirements and were not illegal.
2. Waiver. Any challenge to the constitutionality of the defendant's indictments on double jeopardy grounds should have been raised by means of a pretrial motion. See G.L.c. 277, § 47A; Mass.R .Crim.P. 13(c)(2), 378 Mass. 873 (1979); Commonwealth v. Rodriguez, 17 Mass.App.Ct. 547, 556 (1984). The defendant failed to bring such a motion. He therefore waived this argument.
3. Double jeopardy. Even if the defendant had not waived this claim, his appeal would still fail. The defendant's convictions were properly based on two distinct criminal acts of possession and are not barred by double jeopardy. Commonwealth v. Gaskins, 49 Mass.App.Ct. 903, 904 (2000). On this record, there is no support for the defendant's claim that his convictions were duplicative.
Conclusion. We affirm the orders denying the defendant's fourth, fifth, and sixth motions for postconviction relief.
So ordered.