Com. v. Bruzzese
| Decision Date | 09 May 2002 |
| Citation | 773 N.E.2d 921,437 Mass. 606 |
| Parties | COMMONWEALTH v. Michael BRUZZESE. Commonwealth v. Thomas Chirillo. Commonwealth v. Bruce Wheeler. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
ALba Doto Baccari for Thomas Chirillo.
Robert C. Cosgrove, Assistant District Attorney (Ellen McCusker Devlin, Assistant District Attorney, with him) & Catherine L. Semel, Assistant District Attorney, for the Commonwealth.
Linda G. Ramsden, Boston, for Michael Bruzzese.
Benjamin H. Keehn, Committee for Public Counsel Services, Boston (Paul Rudof, Committee for Public Counsel Services, with him) for Bruce Wheeler.
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, SOSMAN, & CORDY, JJ.
These cases raise issues of the sentencing options available to judges after a defendant's probation has been revoked on multiple charges, and specifically, how a concurrent sentencing scheme affects those options. We granted the Commonwealth's application for further appellate review in Commonwealth v. Bruzzese, 53 Mass.App.Ct. 152, 757 N.E.2d 741 (2001), where the Appeals Court concluded that a judge "impermissibly altered the concurrent sentencing scheme [on four complaints] by extending the probation on one complaint while simultaneously revoking the probation and imposing the suspended sentence of one year on the remaining three." Id. at 155, 757 N.E.2d 741. The Appeals Court further concluded that the judge later violated double jeopardy principles by ordering Bruzzese to serve the suspended sentence on the fourth complaint, the effect of which was to extend the length of Bruzzese's sentence beyond that which the original sentencing judge had imposed. Id. For reasons that follow, we agree with the Appeals Court.
We also granted the Commonwealth's application for further appellate review in Commonwealth v. Chirallo, 53 Mass.App. Ct. 75, 756 N.E.2d 1215 (2001), where the Appeals Court concluded that joinder of probationary periods on unrelated cases created a concurrent sentencing scheme that foreclosed a judge from later imposing consecutive sentences. We conclude that the joinder of probationary periods did not create a concurrent sentencing scheme, and that the judge did have authority to impose consecutive sentences after a subsequent revocation of probation. We therefore affirm the judgment of the Superior Court.
Finally, we granted the Commonwealth's application for direct appellate review where a Superior Court judge allowed Bruce Wheeler's motion under Mass. R.Crim. P. 30(a), 378 Mass. 900 (1979), for release from unlawful restraint. The judge concluded from Commonwealth v. Bruzzese, supra, and Commonwealth v. Chirillo, supra, that he had erroneously imposed consecutive sentences after revoking the defendant's probation on concurrent terms of straight probation. Because we conclude that the concurrent terms of straight probation did not create a concurrent sentencing scheme, we also conclude that the judge did have authority to impose consecutive sentences, and we vacate the order allowing the defendant's motion under rule 30(a).
Michael Bruzzese admitted to sufficient facts to warrant a finding of guilty on each of four complaints, he was found guilty, and a District Court judge sentenced him to concurrent terms of two and one-half years in a house of correction. The judge ordered immediate execution of eighteen months on each sentence, he suspended execution of the balance (one year) of each sentence, and he placed Bruzzese on probation for the suspended portion of the sentence. Bruzzese was ordered to pay restitution as a condition of probation.
After Bruzzese served the eighteen-month portions of his "split" sentences, he began serving probation. While on probation he committed another crime, and was convicted. On June 2, 1998, based on that conviction, and on his failure to pay restitution, a second judge found that Bruzzese had violated his probation. He revoked Bruzzese's probation on three complaints and ordered him to serve the one year balance of the sentences on those complaints. The judge extended the probation on the fourth complaint to December 1, 2000. As before, a condition of Bruzzese's probation was that he pay restitution.1
After he finished serving the sentences on the first three complaints, and during the extended probationary term on the fourth complaint, Bruzzese committed another offense and failed to pay restitution. As a result, on February 15, 2000, the second judge revoked his probation and ordered Bruzzese to serve the balance of the sentence, one year, on the fourth complaint. Bruzzese immediately filed a motion under rule 30(a) for release from unlawful restraint, contending that on June 2, 1998, the judge impermissibly changed the structure of his original sentence, and that the February 15, 2000, order for execution of the suspended portion of the sentence on the fourth complaint violated principles of double jeopardy and due process. The motion was denied. Bruzzese timely appealed from the revocation of his probation on the fourth complaint and the denial of his motion under rule 30(a).
The Appeals Court agreed with Bruzzese. It vacated the one-year sentence on the fourth complaint and reversed the order denying his motion for release from unlawful restraint. See Commonwealth v. Bruzzese, supra at 155, 757 N.E.2d 741.
Three separate cases are involved.
Case 1. On May 22, 1986, Thomas Chirillo pleaded guilty to an indictment alleging a single offense, and he received a tenyear suspended sentence to the Massachusetts Correctional Institution, at Concord. He was placed on probation for two years, and in early 1988 his probation was extended to May 29, 1989.
Case 2. On September 14, 1988, Chirillo pleaded guilty to two offenses for which he had been indicted on June 15, 1988. A second judge sentenced him to concurrent terms of from three to five years at Massachusetts Correctional Institution, Cedar Junction (M.C.I.-Cedar Junction).
Case 3. Chirillo also pleaded guilty on September 14, 1988, to three offenses for which he had been indicted on June 22, 1988. The second judge awarded concurrent sentences of seven to ten years at M.C.I.-Cedar Junction. The sentences were ordered to be served from and after the sentences imposed in Case 2. Execution of the sentences in Case 3 was suspended, and Chirillo was placed on probation for two years, to be served after his release from prison under the sentences imposed in Case 2.
Also on September 14, 1988, after sentencing Chirillo in Cases 2 and 3, and on the basis of those convictions, the second judge found Chirillo in violation of his probation in Case 1. The judge extended Chirillo's probation in Case 1 and ordered that it be served concurrently with the probation in Case 3.2
Chirillo was paroled from the sentences in Case 2, and thereafter began serving probation in Cases 1 and 3. While serving probation he committed another offense. As a result, his parole in Case 2 was revoked, and on September 11, 1991, a third judge found that he had violated his probation. The judge revoked his probation in Case 1 and ordered Chirillo to serve the sentence in Case 1 from and after the sentences in Case 2 that he was then serving. The judge also extended Chirillo's probation in Case 3 for two years, to be served from and after the sentence in Case 1.
On January 15, 1997, Chirillo was released from his sentence in Case 1, and he began serving probation in Case 3. While on probation, he committed another offense. On June 18, 1997, a fourth judge revoked Chirillo's probation and ordered him to serve the sentences in Case 3. On April 20, 1999, Chirillo filed a motion under rule 30(a) for release from unlawful restraint. The motion was denied on June 23, 1999, and Chirillo timely appealed.
The Appeals Court agreed with Chirillo and concluded that, because the probationary periods in Cases 1 and 3 had been joined on September 14, 1988, a concurrent sentencing scheme had been created and the third judge had no authority to unbundle the sentences on September 11, 1991. The Appeals Court reversed the denial of Chirillo's motion under rule 30(a). See Commonwealth v. Chirillo, supra. Commonwealth vs. Bruce Wheeler.
On May 29, 1996, Bruce Wheeler pleaded guilty to eight offenses described in two indictments. He was sentenced to one year in a house of correction for one offense, and placed on straight probation, pursuant to G.L. c. 276, § 87, for ten years on each of the remaining seven counts. The judge ordered the probation on the seven counts to be served concurrently with each other, from and after the sentence imposed on the first count.
On August 20, 1998, a second judge found that Wheeler violated a special term of his probation. He revoked Wheeler's probation on one of the seven counts and sentenced Wheeler to a term of two and one-half years in a house of correction on that count. The judge extended the straight probation for ten years on the remaining six counts, to be served concurrently with each other, from and after the new sentence.
On February 15, 2001, the first judge found that Wheeler violated a special term of his probation. On April 23, 2001, he revoked Wheeler's probation on two counts and sentenced Wheeler to consecutive terms of from three to five years at M.C.I.-Cedar Junction on those counts. He extended the straight probation for ten years on the remaining four counts, to be served concurrently with each other, from and after the prison sentences he had just imposed.3
On December 11, 2001, the first judge wrote to the district attorney and Wheeler's counsel that, based on his reading of the Appeals Court's decisions in Commonwealth v. Bruzzese, supra, and Commonwealth v. Chirillo, supra, he was concerned that "the [Superior] Court may have exceeded its authority and jurisdiction on February 15, 2001, and August 20, 1998....
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