Opinion
19-P-1169
05-18-2021
COMMONWEALTH v. Tredane PURDY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Tredane Purdy, appeals from orders of a Superior Court judge denying the defendant's motions to vacate and correct sentence, and for reconsideration.
The appeal from the November 14, 2018, orders denying the motion and supplemental motion to vacate and correct sentence was brought before this court in a prior appeal (docket no. 18-P-1705). That appeal was dismissed for lack of prosecution. Given that a proper notice of appeal was filed from those original orders, all parties have assumed that those orders are properly before us, and the Commonwealth has conceded error, it is in the interest of justice and judicial economy that we consider the merits of that appeal in the context of this case.
Background. In 2014, pursuant to a plea agreement, the defendant pleaded guilty to a number of indictments stemming from an armed home invasion. As relevant here, the defendant pleaded guilty to carrying a firearm without a license, second offense, with a level two sentencing enhancement under the armed career criminal act (ACCA), reduced as part of the plea agreement from a level three sentencing enhancement. In 2018 and 2019, the defendant filed a series of motions, both pro se and with counsel, seeking to vacate and correct the sentence imposed. All the defendant's motions were denied. This appeal followed.
ACCA sentencing enhancement -- motion and supplemental motion to vacate and correct sentence. The defendant contends, and the Commonwealth concedes, that the judge abused her discretion in denying his motion and supplemental motion to vacate and correct sentence because the record evidence of one of the predicate offenses for the ACCA sentencing enhancement -- assault and battery by means of a dangerous weapon (ABDW) -- did not qualify under the statute. See G. L. c. 269, § 10G. Because a conviction of ABDW can be for an intentional or a reckless touching, a modified categorial approach is required to determine whether the prior offense falls within the purview of the ACCA. See Commonwealth v. Ashford, 486 Mass. 450, 466-468 (2020). Here, the Commonwealth failed to provide additional information during the plea that the predicate ABDW conviction was a crime of violence within the meaning of the ACCA. Accordingly, the denial of the defendant's motions on this issue was error.
The Commonwealth's concession does not relieve us of our appellate function of determining whether error was committed. See Commonwealth v. Smith, 60 Mass. App. Ct. 204, 206 n.2 (2003).
The defendant does not challenge the predicate offense of possession with intent to distribute a class B substance.
The Commonwealth set forth additional details of the ABDW conviction for the first time in response to the defendant's postconviction motions. This proffer was not timely and did not satisfy the requirements outlined in Ashford, 486 Mass. at 466-468.
Arraignment -- motions for reconsideration. The defendant next claims that the judge erred in imposing an ACCA sentencing enhancement without conducting an arraignment informing him of the nature of the charge, and without conducting a separate plea hearing. We are not persuaded. Statutes providing for sentence enhancements "do not create independent crimes, but enhance the sentence for the underlying crime" (citation omitted). Commonwealth v. Richardson, 469 Mass. 248, 252 (2014). See Alicea v. Commonwealth, 466 Mass. 228, 230-231 n.6 (2013). More specifically, "[t]he armed career criminal statute does not define a stand-alone separate offense. Rather, the repeat offender statute establishes sentencing enhancements for offenders who, [having qualifying previous convictions,] commit certain firearm offenses" (quotation omitted). Commonwealth v. Sylvia, 89 Mass. App. Ct. 279, 288 (2016), quoting Alicea, supra. See Rivera v. Commonwealth, 484 Mass. 1015, 1018 (2020) (subsequent ACCA trial did not raise double jeopardy concerns as trial was not for second, separate offense). Accordingly, there was no error.
This argument was raised in motions for reconsideration brought first by the defendant pro se, and then by counsel; the motions were denied on January 20, 2019, and July 25, 2019, respectively.
The Commonwealth argues that this issue was waived. Passing on the question of waiver, we proceed to the merits.
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Conclusion. The orders entered November 14, 2018, denying the motion and supplemental motion to vacate and correct sentence are vacated, and an order shall enter allowing the motions. On indictment eight, charging carrying a firearm without a license, second offense, so much of the finding as pertains to the predicate offense of ABDW is set aside, and a guilty finding shall enter under G. L. c. 269, § 10G (a ), based on one predicate offense. On the remaining indictments, the findings shall stand. In view of the fact that the sentence on indictment eight was the lead sentence, the sentences on all indictments are vacated, and the case is remanded for resentencing. The orders entered January 20, 2019, and July 25, 2019, denying the motions for reconsideration are affirmed.
So ordered.
Vacated in part and remanded; affirmed in part.