Opinion
21-P-537
10-14-2022
COMMONWEALTH v. MICHAEL R. MUNAFO.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant challenges Superior Court orders revoking his probation and denying in part his postconviction motion to correct sentences. He contends that his convictions must be vacated because the underlying indictments were improperly amended and duplicative. We affirm.
Background.
In November 2015, a grand jury returned thirty-seven indictments against the defendant charging him with numerous offenses involving six stolen credit cards. On April 21, 2016, a change of plea hearing took place. The judge allowed the Commonwealth's motion to amend six of the indictments from larceny under $250 to receiving stolen property under $250 (RSP). Pursuant to the plea agreement, the Commonwealth dismissed nine indictments, and the defendant pleaded guilty to seventeen counts of misuse of a credit card under $250, five counts of improper use of a credit card over $250, and six counts of RSP. The judge accepted the parties' agreement and sentenced the defendant to concurrent sentences of two years in the house of correction on the six convictions for RSP, followed by three years of probation on the twenty-two convictions for certain credit card offenses.
The defendant pleaded guilty before the felony threshold for larceny, RSP, and improper use of a credit card increased from $250 to $1200. See St. 2018, c. 69, §§ 136, 141-144, 146.
After completing the committed portion of his sentences, the defendant was released on probation. On May 6, 2019, a second Superior Court judge found that the defendant had violated the terms of his probation and sentenced him to concurrent terms of three to five years in State prison on the five convictions for improper use of a credit card. The judge terminated the defendant's probation for the seventeen remaining convictions.
In September 2020, the defendant filed a motion to correct sentences pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). The defendant moved to vacate his convictions for RSP because, he claimed, the amended indictments materially changed the work of the grand jury and were duplicative of the indictments for improper use of a credit card. He also moved to vacate all but six of his twenty-two convictions for improper use or misuse of a credit card, claiming that he could only be charged with one count of improper use or misuse for each stolen credit card.
In March 2021, the motion judge, who was also the plea judge, allowed the motion in part. He vacated six convictions for misuse of a credit card, and denied the motion as to the remaining convictions. The judge reasoned that he had allowed the Commonwealth's motion to amend the indictments from larceny to RSP "[w]ith the defendant's express assent," and that, as a result, the defendant had waived his argument as to the propriety of the amendments. The judge nonetheless found that RSP was a lesser included offense of improper use of a credit card, and therefore, the defendant's convictions on these charges were duplicative. The judge vacated six convictions for the more serious offense of misuse of a credit card in order to "preserve[] the sentence structure the parties intended in their plea agreement to the greatest extent possible."
Discussion.
1. Propriety of the amendments.
Although the defendant styled his motion to correct sentences as a motion brought under Mass. R. Crim. P. 30 (a), he challenged the validity of his convictions, not the legality of the concomitant sentences. His motion was therefore governed by Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).
We review the denial of a Mass. R. Crim. P. 30 (b) motion for a significant error of law or abuse of discretion. See Commonwealth v. Lastowski, 478 Mass. 572, 575 (2018), quoting Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016). Substantial deference is warranted where, as here, the motion judge was also the plea judge. See Commonwealth v. Lys, 481 Mass. 1, 4 (2018), citing Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016).
Because the defendant did not object to the Commonwealth's motion to amend or move to dismiss the amended indictments pursuant to Mass. R. Crim. P. 13 (c), as appearing in 442 Mass. 1516 (2004), and G. L. c. 277, § 47A, he waived his right to argue the propriety of the amended indictments. Moreover, the defendant did not submit a transcript of the plea or any other evidence establishing that he either objected to or moved to dismiss the amended indictments. See Commonwealth v. Lopez, 426 Mass. 657, 663 (1998) (requirement that defendant provide "sufficient credible and reliable factual evidence in support of a rule 30 [b] motion" of heightened significance where challenge is collateral attack on conviction resulting from guilty plea raised after defendant realized collateral consequences of conviction). Because the defendant assented to the amendments and pleaded guilty to each of the revised indictments, the motion was properly denied.
"A guilty plea, once accepted, leads to a final judgment of conviction; like a verdict of guilty, it is conclusive." Commonwealth v. Cabrera, 449 Mass. 825, 830 (2007). "A defendant's guilty plea, made knowingly, voluntarily and with the benefit of competent counsel, waives all nonjurisdictional defects in the proceedings prior to the entry of the guilty plea" (citation omitted). Commonwealth v. Berrios, 84 Mass.App.Ct. 521, 524 (2013). See G. L. c. 263, § 4A (defendant's waiver of right to be proceeded against by indictment provides court with "full jurisdiction" over charge "as if an indictment had been found").
A defendant can waive the right to be proceeded against by indictment provided that the waiver is "explicit, voluntary, and intelligent." Commonwealth v. Peterson, 445 Mass. 782, 788 (2006). See G. L. c. 263, § 4A. See also G. L. c. 277, § 47A (failure to object to defects in institution of prosecution or indictment before trial "shall constitute a waiver thereof"); Commonwealth v. Holley, 476 Mass. 114, 119 (2016) (challenge to validity of indictment waived where defendant raised issue for first time in motion for postconviction relief). The defendant has not presented any evidence that suggests that his waiver was not freely given.
The defendant's reliance on Commonwealth v. Negron, 462 Mass. 102, 105 (2012), for the proposition that his challenge to the amendments is exempt from the doctrine of waiver is misplaced. In Negron, supra, the Court held that a guilty plea does not bar a defendant" from bringing an appeal or collateral challenge to his conviction on the ground that the conviction violated the prohibition against double jeopardy." Here, the defendant does not argue that amending the indictments violated the prohibition against double jeopardy, but that it was improper because it materially changed the work of the grand jury.
We next consider whether amending the indictments gave rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Adams, 485 Mass. 663, 669 & n.11 (2020). Although the record does not contain the specifics of the parties' plea agreement, the defendant's assent to amending the indictments on the same day that he pleaded guilty supports the inference that the amendments were part of the agreement. Cf. Commonwealth v. Ortiz-Peguero, 51 Mass.App.Ct. 90, 94 (2001) (where Commonwealth submitted orders of forfeiture during plea proceedings and defendant did not object to lack of notice, record supported inference that forfeiture of defendant's property was part of plea agreement). As the judge explained, in exchange for the defendant's guilty pleas, the Commonwealth moved to dismiss nine indictments (six of which carried a penalty of up to twenty years in State prison) and recommended a three-year term of probation on offenses for which the defendant faced up to five years in State prison.
Contrary to the defendant's claim, he does not have a Federal constitutional right to a grand jury indictment for State crimes of larceny or RSP. See Commonwealth v. Stevenson, 474 Mass. 372, 375 (2016). And the right to indictment by grand jury under art. 12 of the Massachusetts Declaration of Rights applies only to felonies, which are crimes punishable by imprisonment in State prison. See G. L. c. 274, § 1; Commonwealth v. Knight, 437 Mass. 487, 492 (2002) (art. 12 right to indictment by grand jury for crime punishable by State prison). Larceny under $250 and RSP valued under $250 are punishable by "imprisonment in jail" and the house of correction, respectively. See G. L. c. 266, §§ 30 (1), 60.
That the defendant did not challenge his convictions until several years after he entered his pleas, after he violated probation and was sentenced to State prison, suggests that "when the plea was made, the defendant was satisfied with his arrangement; had been counselled as to its particulars, and could be lawfully deemed to have accepted what were the unforeseeable, but possible, consequences." Lopez, 426 Mass. at 663. Accordingly, we discern no substantial risk of a miscarriage of justice and conclude that the motion judge did not abuse his discretion.
If the Commonwealth intended to prosecute the defendant on the theory that he either stole the credit cards or received them, the better practice would have been to indict the defendant for both crimes. See Commonwealth v. Dellamano, 393 Mass. 132, 134 n.4 (1984).
2. Duplicative convictions.
The defendant next contends that each conviction of RSP and all but six convictions of improper use of a credit card are duplicative and thus violate double jeopardy principles. Under Mass. R. Crim. P. 30 (a), a defendant can "raise a double jeopardy challenge to his continued confinement or restraint arising from a criminal conviction, whether from a guilty plea or a jury verdict, 'at any time, as of right.'" Commonwealth v. Negron, 462 Mass. 102, 105 (2012). We review for an abuse of discretion. See Commonwealth v. Perez, 477 Mass. 677, 681-682 (2017).
The defendant claims that he could only be punished for one count of misuse or improper use of a credit card for each of the six stolen credit cards. And because the motion judge found that RSP is a lesser included offense of improper use of a credit card, he could not be punished for both crimes for the same credit card.
Because the Commonwealth did not file a notice of appeal, we do not consider its contention that the judge improperly vacated six convictions for misuse of a credit card, and in the alternative, if there was a double jeopardy violation, that the judge did not take appropriate action to remedy it.
"Both the double jeopardy clause of the Fifth Amendment to the United States Constitution and Massachusetts common law prohibit the imposition of multiple punishments for the same offense." Commonwealth v. Dykens, 473 Mass. 635, 638 (2016) . Convictions are duplicative where the acts underlying the offenses are "part of a continuous stream of conduct occurring within a short time frame and governed by a single criminal design," Commonwealth v. Howze, 58 Mass.App.Ct. 147, 153 (2003), overruled on other grounds by Commonwealth v. Kelly, 470 Mass. 682, 700-701 (2015). Even if one offense is a lesser included offense of another, a defendant may be convicted of both offenses if each one is based on separate and distinct acts. See Commonwealth v. King, 445 Mass. 217, 225-226 (2005).
Our review of the defendant's double jeopardy claim is hampered by the lack of a transcript of the grand jury minutes or plea hearing. We therefore may presume that the judge would not have accepted the defendant's pleas unless separate offenses were shown. See Commonwealth v. Rabb, 431 Mass. 123, 132 (2000). Although the judge noted that he had initially accepted pleas to offenses that were duplicative, we presume that in the face of the error, he opted to vacate six of the misuse convictions because only these convictions were based on the same facts as the six RSP convictions. We likewise presume that the remaining improper use convictions were based on different sets of facts. For these reasons, the defendant's motion was properly denied as to the remaining convictions.
The defendant also challenges the judge's decision to vacate six convictions for the greater offense of misuse of a credit card rather than six convictions for the lesser offense of RSP. "[T]he decision as to which duplicative conviction to vacate is a discretionary one." Commonwealth v. Rivas, 466 Mass. 184, 190 (2013). The defendant has not shown that the judge abused that discretion here. See Id., quoting Commonwealth v. Johnson, 75 Mass.App.Ct. 903, 908 (2009) (Brown, J., concurring) ("to the extent that the only defect in unauthorized duplicative convictions lies in the affront they pose to double jeopardy principles, it is immaterial which convictions are dismissed. . . . A court should be free to fashion whatever remedy best serves the ends of justice in any particular case").
3. Probation violation.
Lastly, the defendant challenges the sentences that he received for violating the terms of his probation on the grounds that the underlying convictions violated his double jeopardy rights. Because there was no error, the sentences were properly imposed.
Order revoking probation affirmed.
Order dated March 27, 2021, affirmed.
The panelists are listed in order of seniority.