Opinion
14-P-1785
12-04-2015
COMMONWEALTH v. NAKIA D. LANE.
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 defendant, Nakia D. Lane, appeals from the order denying his motion for release from unlawful restraint. See Mass.R.Crim.P.30(a), as appearing in 435 Mass. 1501 (2001). He challenges, on double jeopardy grounds, his imprisonment on a probation violation. We affirm.
The Commonwealth asks us also to affirm the order denying the defendant's motion to reconsider the denial of his motion for relief from unlawful restraint. Although we confine our review to the issue identified by the defendant in his notice of appeal -- the October 27, 2014, order denying his motion for relief from unlawful restraint -- we note that the defendant's motion to reconsider adds nothing of substance to what was presented in the original motion.
Background. We summarize the relevant procedural history. In 2003, the defendant was indicted for armed assault with intent to murder (count one), assault and battery by means of a dangerous weapon (count two), possession of a firearm (count three), and possession of ammunition (count four). On January 21, 2005, after a jury trial, the defendant was found guilty of counts two, three, and four. He was sentenced to three concurrent terms of nine to ten years of incarceration and credited with the 551 days he spent in jail awaiting trial.
The jury found the defendant not guilty of armed assault with intent to murder (count one).
In June, 2007, while serving time on the 2003 offenses, the defendant was indicted on four additional charges -- two of which he pleaded guilty to on July 2, 2009. On one of the counts, the judge sentenced the defendant to a two-to-two-years-and-one-day term of incarceration consecutive to the 2005 terms of incarceration that he was then serving. On the other count, the defendant was sentenced to one year of probation consecutive to his terms of incarceration.
The indictment charged the defendant with accessory after the fact and attempt to commit a crime, to both of which he pleaded guilty, and two habitual offender counts that were dismissed upon his guilty pleas on the other two counts.
Meanwhile, in June of 2012, Supreme Judicial Court affirmed an order granting the defendant a new trial on his 2005 convictions. Commonwealth v. Lane, 462 Mass. 591 (2012). Thereafter, on August 6, 2012, the defendant entered new guilty pleas in the 2005 case. The prosecutor presented the plea judge with the parties' joint recommendation: in exchange for the defendant's guilty pleas, the Commonwealth agreed to a sentence of "time served" on all of his convictions, including the 2009 convictions. The defendant was in the court room and represented by counsel when the judge articulated the joint recommendation that the defendant would be sentenced to "essentially . . . time served," for both his 2005 and 2009 convictions followed by a period of one year's probation.
The judge, thereafter, took and accepted the defendant's guilty pleas. He imposed the joint recommendation of "nine [years] to nine years and one day . . . with credit for the amount of time served already on those cases, which" the judge indicated "[wa]s in excess of nine years." The defendant had not commenced serving his 2009 sentences as of then, and the defendant requested that the judge reimpose them nunc pro tunc to July 2, 2009. The judge agreed. The judge also reimposed the one-year period of probation. The defendant was released from custody on that day and ordered to commence his one-year probationary term.
The judge announced in court to the defendant that he would be on probation for one year, and reminded the defendant of his stay-away condition. The order of probation, which bears the defendant's signature, also notes that the defendant's probation commenced upon "upon [his] release from incarceration."
In April of 2013, the defendant was served with a violation of probation notice and, at a subsequent probation surrender hearing, he admitted to the violations. The defendant's probation was terminated, and he was sentenced to three years to three years and one day of incarceration for the violations.
In July, 2014, the defendant filed a motion for release from unlawful restraint, which is the subject of this appeal. The defendant challenged, on double jeopardy grounds, the judge's authority to reimpose the one-year probationary period to commence upon his release from custody in August of 2012. The Commonwealth opposed the motion and, after a hearing, the judge issued a written decision denying the defendant's request for relief from incarceration. In October, 2014, the defendant filed a motion to reconsider, which the judge also denied. This appeal followed.
Discussion. Double jeopardy. The double jeopardy clause, which protects a defendant against "multiple punishments for the same offense, . . . 'represents a constitutional policy of finality for the defendant's benefit' in criminal proceedings." Commonwealth v. Goodwin, 458 Mass. 11, 19 (2010), quoting from Aldoupolis v. Commonwealth, 386 Mass. 260, 271-272, 274, cert. denied, 459 U.S. 864 (1982). However, the protection from being placed in double jeopardy "does not relieve a defendant from the consequences of his voluntary choice." Commonwealth v. Bennett, 52 Mass. App. Ct. 905, 906 (2001), quoting from Lydon v. Commonwealth, 381 Mass. 356, 365-366, cert. denied, 449 U.S. 1065 (1980).
The defendant negotiated a favorable plea on his 2005 cases that resulted in eviscerating the consecutive incarcerations owing on his 2009 cases. In order to afford him the benefit of this "time served" plea deal, the defendant requested, and the judge agreed, to reimpose the sentences of incarceration from his 2009 case nunc pro tunc to the 2009 plea date. The sentence structure itself, however, did not alter. It remained a sentence of two years to two years and one day on one count, followed by one year's probation upon his release from custody on the other count. Contrary to the defendant's claim, once the incarcerated portion was deemed served, the defendant's probationary term did not also disappear. It commenced, as the defendant had agreed to both in 2009 when originally imposed and in 2012 when reimposed, upon his release from incarceration, which occurred on August 6, 2012, at the conclusion of his pleas and resentencings. See Commonwealth v. Ruiz, 453 Mass. 474, 480 (2009) (When "a defendant is sentenced to both incarceration and probation, probation typically begins on the defendant's release from incarceration"). Because the defendant willingly exposed himself to resentencing for a more lenient sentence, we see no violation of his right against double jeopardy. See Commonwealth v. Cumming, 466 Mass. 467, 471 (2013). Contrast Commonwealth v. Selavka, 469 Mass. 502, 503 (2014) (Commonwealth could not seek, after sentencing, imposition over the defendant's objection of additional condition of probation). Accordingly, we see no error in the denial of his motion.
The defendant contends that because the sentence was nunc pro tunc to 2009, his probation would have ended one year from 2009, in 2010.
Notably also, the proper time for determining the validity of a defense of double jeopardy is prior to the proceeding that would offend the protected right, and here the defendant waited nearly eleven months after his incarceration on the probation violation to raise his challenge. Cf. Lydon v. Commonwealth, 381 Mass. at 367 ("If there is a valid double jeopardy claim, it should be dealt with before, rather than after, the second trial").
Order denying motion for release from unlawful restraint affirmed.
By the Court (Trainor, Grainger & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 4, 2015.