Opinion
22-P-93
12-07-2022
COMMONWEALTH v. KEITH HARLOW.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
Sullivan, Massing & Hershfang, JJ.
The panelists are listed in order of seniority.
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
The defendant pleaded guilty to the masked armed robbery of a general store in violation of G. L. c. 265, § 17, two counts of armed assault to rob in violation of G. L. c. 265, § 18 (b), and two charges of witness intimidation in violation of G. L. c. 268, § 13B. He was subsequently indicted for robbing two banks and pleaded guilty to two counts of unarmed robbery in violation of G. L. c. 265, § 19 (b). He was sentenced in both cases to five concurrent six to ten-year terms on the robbery charges, and to a subsequent period of three years' probation on the two witness intimidation charges. After considering the defendant's postconviction motion to vacate guilty pleas and sentences, the same Superior Court judge who had sentenced the defendant determined that the two indictments for armed assault to rob were lesser included offenses of the armed robbery, allowed in part the motion to vacate, and vacated those convictions. He then directed entry of a new, corrected mittimus. The defendant now claims that the dismissal of the lesser included offenses requires a reduction in sentence. We affirm.
The defendant also appealed from orders on several other post judgment motions, none of which have been briefed on appeal, and are deemed waived.
The defendant first contends that his armed robbery sentence is unfair because it is more severe than that of his codefendant. The judge may assess culpability and sentence accordingly. See Commonwealth v. Tej eda, 481 Mass. 794, 797 (2019). Moreover, we have not been provided with the record of the plea or sentencing. See Mass. R. A. P. 18 (a) (1) (A) (v) (a), as appearing in 481 Mass. 1637 (2019) (appellant's obligation to provide a complete appellate record). However, in this case, the omission is immaterial, because under the law, the defendant is not entitled to relief. There was no error or abuse of discretion on the record before us.
The defendant also maintains that because the total number of convictions was reduced, he should receive a lesser sentence. Where a lesser included offense is dismissed, the sentence on the lesser included offense is vacated and the sentence on the greater offense is left undisturbed. See Commonwealth v. Valliere, 437 Mass. 366, 371-372 (2002) ("The appropriate remedy for duplicative convictions, so as to prevent multiple punishments, is to vacate both the conviction and sentence on the lesser included offense, and to affirm on the more serious offense"). See also Commonwealth v. Duncan, 100 Mass.App.Ct. 635, 642-643 (2022), quoting Commonwealth v. Vao Sok, 435 Mass. 743, 759 (2002) ("the 'Commonwealth is entitled to a verdict on the highest crime charged'"). Moreover, the judge expressly considered the sentences he had imposed and concluded that the concurrent sentencing scheme should remain. There was no abuse of discretion or error of law.
The defendant's citation to Commonwealth v. White, 436 Mass. 340 (2002), is unpersuasive because White does not apply in this case. In White, the entire sentencing scheme was vacated and remanded for sentencing anew. Here, the sentencing scheme remained intact.
Orders dated December 15, 2021, affirmed.