Opinion
19-P-398
03-06-2020
COMMONWEALTH v. Samuel SMITH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Samuel Smith, appeals from a Superior Court judge's order denying his motion to vacate an illegal sentence, imposed in 1992 and 1993, pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), or, in the alternative, to withdraw his guilty plea and order a new trial, pursuant to Mass. R. Crim. P. 30 (b). We affirm.
Discussion. 1. Rule 30 (a). Because the sentences the defendant now challenges as "illegal" have run, rule 30 (a) is not an available remedy. See Commonwealth v. Williams, 96 Mass. App. Ct. 610, 613 (2019) ( rule 30 (a) "facially inapplicable where the sentence and probationary period have already run").
The defendant challenges the sentences he received for pleading guilty to three indictments. At the latest, the defendant's sentences for these offense ran by December 2003.
Rule 30 (a) permits a challenge to a sentence "then being served." Additionally, as we discussed in Williams, the Supreme Judicial Court has permitted rule 30 (a) to be used (1) "where a restraint of liberty other than incarceration or probation is ongoing," (2) "to challenge a suspended sentence during the time period of its suspension," or (3) "to challenge a (possibly) already served sentence where the defendant ‘currently is incarcerated under a "from and after" sentence that is structurally related to the sentence’ under review" (citations omitted). 96 Mass. App. Ct. at 613-614. The defendant does not argue, nor does the record support, that any of these apply to the present case.
2. Rule 30 (b). We review a judge's denial of a rule 30 (b) motion for an abuse of discretion. See Commonwealth v. Furr, 454 Mass. 101, 106 (2009). A judge may grant a motion to withdraw a guilty plea "only if it appears that justice may not have been done" (quotation and citation omitted). Id.
The defendant maintains that his sentences were "illegal" because he received credits in excess of the amounts to which he was entitled. See G. L. c. 279, § 33A. An "illegal sentence" is "one that is in excess of the punishment prescribed by the relevant statutory provision or in some way contrary to the applicable statute." Commonwealth v. Layne, 21 Mass. App. Ct. 17, 19 (1985). Here, the sentences were all within the statutorily prescribed guidelines. Additionally, "a judge has discretion to effectively authorize a credit by imposing a concurrent sentence in a separate case nunc pro tunc to the commencement of the prior sentence." Commonwealth v. Lydon, 477 Mass. 1013, 1014 (2017), citing Commonwealth v. Barton, 74 Mass. App. Ct. 912, 914 (2009). Thus, ordering that the three sentences run concurrently by applying credit to the subsequent sentences was not improper. See Barton, supra.
The first two sentences were ordered on April 10, 1992. The third sentence was ordered on April 20, 1993. After applying 108 days of sentence credit to the first two sentences and 484 days to the third sentence, the defendant would have effectively began serving all three sentences at the same time.
To the extent that any arguments are not expressly addressed, "they ‘have not been overlooked. We find nothing in them that requires discussion.’ " Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). Additionally, we do not address claims that are not supported by reasoned argument or citations as they do not rise to the level of appellate advocacy required under Mass. R. A. P. 16, as appearing in 481 Mass. 1628 (2019). See Commonwealth v. Gray, 423 Mass. 293, 296 (1996). See also Commonwealth v. DiRenzo, 52 Mass. App. Ct. 907, 909 (2001) (claim not supported by cogent reasoning or citation to authority deemed insufficient and waived).
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Order denying motion to vacate illegal sentence or for new trial affirmed.