Opinion
18-P-1212
01-22-2020
COMMONWEALTH v. Daryl TAVARES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Daryl Tavares, appeals pro se from the denial of his motion under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), to vacate what he alleges was an illegal sentence. We affirm.
Background. On December 20, 2010, a Suffolk County grand jury returned indictments charging the defendant with five counts of breaking and entering with intent to commit a felony, five counts of larceny over $250, and five counts of wanton destruction of personal property over $250. For each of the breaking and entering charges, the grand jury also charged the defendant with being a habitual criminal, in violation of G. L. c. 279, § 25. The breaking and entering charges stemmed from five incidents during a twenty-month period. For each incident, the defendant was charged with three offenses.
The four incidents for which the defendant was convicted occurred on December 17, 2008; December 8, 2009; May 6, 2010; and August 19, 2010.
All of the indictments were joined for trial before a jury. On January 31, 2012, the defendant was convicted on twelve of the fifteen counts (each of the three counts for four of the five incidents). The next day, in a separate jury-waived trial, the defendant was convicted of being a habitual criminal. He was sentenced to (1) from fifteen to twenty years in State prison as a common and notorious thief; (2) ten years in State prison for each of the breaking and entering charges, to run concurrently with each other and with the sentence for being a common and notorious thief; and (3) ten years' probation for each of the wanton destruction of property charges, to run concurrently with each other, and from and after the State prison sentences. Upon the defendant's consolidated appeal, a panel of this court affirmed the judgments and the denial of the defendant's motion for new trial. Commonwealth v. Tavares, 87 Mass. App. Ct. 1111 (2015). From the Superior Court docket sheet, it appears that the defendant filed several motions to vacate or correct an illegal sentence. On August 6, 2018, the defendant filed the motion at issue here; that motion was denied on August 12, 2018. The defendant argues now that the trial court violated the merger doctrine in convicting him of both larceny and breaking and entering for each incident; he also argues that two sentencing enhancements were unlawfully imposed. We affirm.
Apparently, the defendant also appealed the sentence to the Appellate Division of the Superior Court; on May 16, 2013, the Appellate Division ordered that "the judgment imposing said sentence stand and that said appeal be and is hereby dismissed." The defendant also filed a motion for a new trial that was denied on August 15, 2016. His appeal from that ruling was joined with his direct appeal and affirmed in this court. Tavares, 87 Mass. App. Ct. 1111 (2015).
A "Motion to vacate illegal sentences" was filed on July 30, 2012; at the same time, the defendant filed a motion for "appointment of counsel on motion to vacate illegal sentences" and a motion for an evidentiary hearing on the motion to vacate illegal sentences. The second motion was denied by the trial judge on June 27, 2013. Subsequent motions to compel a response to the motion and to be brought to court on the motion were denied by the trial judge and a different judge on May 23, 2016, and July 22, 2016, respectively. It appears that the defendant then filed a second "Pro Se Defendant's Motion to Vacate Illegal Sentence" on November 6, 2017. That motion was denied on November 13, 2017.
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Discussion. We review the denial of a motion under rule 30 (b) for an abuse of discretion or error of law. See Commonwealth v. Perez, 477 Mass. 677, 681-682 (2017). "We ‘examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion.’ " Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
The defendant first argues that "the trial court violated the ‘merger doctrine’ where [he] was sentenced separately for the breaking and enterings and the directly related larcenies, which runs counter to the [c]ourt's holding in Commonwealth v. Mavredakis, 430 Mass. 848 [2000]." The defendant, however, has already litigated this argument unsuccessfully. That is, a panel of this court addressed on direct appeal the issue whether the trial judge could sentence the defendant separately for the breaking and entering charges and the larceny charges. We said, " ‘[A] defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.’ Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). See Commonwealth v. Ford, 397 Mass. 298, 302 (1986) (charges of breaking and entering in the nighttime with intent to commit a felony, larceny in a building, and malicious destruction of property arising from the same incident held not duplicative). Here, ‘neither crime is a lesser-included offense of the other, and convictions on both are deemed to have been authorized by the Legislature and hence not [duplicative].’ Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting from Commonwealth v. Jones, 382 Mass. 387, 393 (1981). Furthermore, the five sets of indictments related to ‘distinct’ crimes. Commonwealth v. Crocker, 384 Mass. 353, 356 (1981). The offenses were committed at different times and locations, and involved different victims." Tavares, 87 Mass. App. Ct. 1111. The defendant is therefore directly estopped from relitigating the issue now. See Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005).
The defendant's second argument, that imposing sentence enhancements for being both a common and notorious thief and a habitual offender violated his due process rights, fails for the same reason. On direct appeal, a panel of this court noted, "The defendant also argues that the judge improperly sentenced him as a habitual offender and a common and notorious thief, pursuant to G. L. c. 279, § 25, and G. L. c. 266, § 40." Tavares, supra. We disagreed and held that "[b]oth sentences comported with their respective statutory requirements and were based on distinct criminal offenses. See Crocker, [384 Mass. at] 354-356." Tavares, supra. Accordingly, the defendant is estopped from relitigating this issue as well.
Order entered August 12, 2018, denying motion to correct sentence affirmed.