Campbell v. Com.

• Decision Date: 05 November 1959
• Parties: Donald H. CAMPBELL v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 262

162 N.E.2d 262

339 Mass. 695

Donald H. CAMPBELL v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 7, 1959.

Decided Nov. 5, 1959.

William F. Donnelly, Roxbury, for petitioner.

John Warren McGarry, Asst. Atty. Gen., for Commonwealth.

Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS and WHITTEMORE, JJ.

WHITTEMORE, Justice.

This petition for a writ of error was reserved and reported by the single justice, without decision, upon the petition, answer, and return. The return shows as follows: The petitioner, Campbell, on June 9, 1956, in the District Court of Springfield, pleaded guilty to larceny from the person and was sentenced to imprisonment in the House of Correction in Springfield for the term of eighteen months. He did not then appeal and, under G.L. c. 218, § 31, he was ordered committed to the jail, ¹ to await commitment upon the sentence, until June 11. On that day Campbell appealed to the Superior Court, bail was fixed, and in default of bail he was committed to the Springfield jail. G.L. c. 278, § 18 ('committed to abide the sentence of * * * [the superior] court'). On June 18 Campbell withdrew his appeal, and the judge then sitting revoked the sentence of June 9 and imposed an indeterminate sentence to Massachusetts Correctional Institution at Concord, that is, the Massachusetts reformatory. See G.L. c. 125, § 1, as amended through St.1955, c. 770, § 11.

1. We rule that the sentence of June 18 meant an 'increase [in] the sentence as first imposed' in violation of G.L. c. 278, § 25, which provides that if, in accordance therewith, an appeal to the Superior Court is withdrawn, 'the court may order the appellant to comply with the sentence appealed from, in the same manner as if it were then first imposed, or amy revise or revoke the same if satisfied that cause for such revision or revocation exists; provided, that the court shall not increase the sentence as first imposed * * *.' ²

The maximum length of Campbell's confinement under the sentence for an 'indefinite term' (G.L. c. 279, § 31) was five years. This is determined by § 32 ('The court imposing a sentence of commitment for an indefinite term shall not fix the maximum term unless it exceeds five years, but shall merely impose an indefinite sentence or commitment') and § 33 ('Whoever is sentenced to the Massachusetts reformatory * * * for any felony may be held therein for not more than five years unless sentenced for a longer term, in which case he may be held therein for such longer term * * *'). A reference to § 33 was necessarily implicit in the indefinite sentence imposed on June 18. Sheehan, petitioner, 254 Mass. 342, 346, 150 N.E. 231. See Whitney v. Commonwealth, 337 Mass. 722, 724-725, 151 N.E.2d 272.

The minimum length of Campbell's confinement (see G.L. c. 127, §§ 128, 130, 130A, 133, 134, 135, 136) was insignificant inasmuch as the sentence, for present purposes, is to be taken as a sentence for five years subject to mitigation in its effect, or termination, by the operation of subsequent events. This principle is well established as to sentences under G.L. c. 279, § 24, in which the maximum and minimum terms are expressly stated. Commonwealth v. Brown, 167 Mas. 144, 146, 45 N.E. 1; Oliver v. Oliver, 169 Mass. 592, 594, 48 N.E. 843; Murphy v. Commonwealth, 172 Mass. 264, 275, 52 N.E. 505, 43 L.R.A. 154, and cases cited. We think there is no valid distinction in this respect between the two kinds of indeterminate sentence. No distinction results from the possibility of termination of the sentence under G.L. c. 127, § 130A, inserted by St.1955, c. 770, § 68. Murphy v. Commonwealth, supra. In re Jordan, 190 Cal. 416, 212 P. 913 (Cal. Penal Code, § 3020, '* * * the board may determine and redetermine, after the expiration of six months * * * what length of time, if any, such person shall be imprisoned * * *'). See Woods v. State, 130 Tenn. 100, 114-116, 169 S.W. 558, L.R.A.1915F, 531. In the Murphy opinion, at page 275 of 172 Mass., at page 509 of 52 N.E., the court said, 'It is as correct * * * to say that, in case of a pardon, the governor fixes the term of imprisonment, as to say that in case of release upon a permit, the commissioners fix it. * * * In no just sense can it be said, we think, that the duration of his sentence is uncertain * * *.' Admittedly, as the Commonwealth contends, it cannot be known in advance how long a time may be necessary to accomplish the underlying purpose of the indeterminate sentence, that is, the reformation and rehabilitation of the prisoner. Platt v. Commonwealth, 256 Mass. 539, 543, 152 N.E. 914. But the statute puts a limit to the time during which the effort may be made, and for purposes of G.L. c. 278, § 25, that limit is the length of the sentence.

2. In view of the statutory prohibition of increase of sentence on withdrawal of appeal, we do not reach the question of the right of the court to change the sentence apart from statute. See Commonwealth v. Weymouth, 2 Allen 144; Commonwealth v. O'Brien, 175 Mass. 37, 55 N.E. 466; Commonwealth v. Lobel, 187 Mass. 288, 72 N.E. 977; Commonwealth v. Dascalakis, 246 Mass. 12, 20, 140 N.E. 470; Fine v. Commonwealth, 312 Mass. 252, 255, 44 N.E.2d 659, 145 A.L.R. 392; Bozza v. United States, 330 U.S. 160, 165-167, 67 S.Ct. 645, 91 L.Ed. 818, and cases cited; Brown v. Rice, 57 Me. 55; People v. Thompson, 251 N.Y. 428, 431, 167 N.E. 575; Manda v. State, 28 N.J.Super. 259, 100 A.2d 500. For the power to resentence after void or voidable sentence and to retry after reversal of judgment for other error, see G.L. c. 250, § 12; Commonwealth v. Murphy, 174 Mass. 369, 54 N.E. 860, 48 L.R.A. 393; Murphy v. Commonwealth of Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711; Lewis v. Commonwealth, 329 Mass. 445, 108 N.E.2d 922, 35 A.L.R.2d 1277; Giles v. Commonwealth, 339 Mass. ----, 159 N.E.2d 536.

3. In the circumstances, the revocation of the earlier sentence is to be construed as...