Com. v. Simmons

• Decision Date: 04 April 2007
• Citation: 863 N.E.2d 549,448 Mass. 687
• Parties: COMMONWEALTH v. Paul SIMMONS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

863 N.E.2d 549

448 Mass. 687

COMMONWEALTH v. Paul SIMMONS.

Supreme Judicial Court of Massachusetts, Hampden.

Argued January 2, 2007.

Decided April 4, 2007.

Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.

Sean J. Gallagher for the defendant.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

SPINA, J.

The defendant, Paul Simmons, pleaded guilty to thirteen indictments in 1981. He was sentenced immediately on six indictments, and the remainder were "placed on file." Approximately five years later, the defendant was arrested for a new crime. At his arraignment, one of the 1981 indictments was removed from the file and brought before a different judge to impose a prison sentence on the defendant. The Appeals Court vacated the denial of the defendant's fourth motion for postconviction relief involving this sentence, see Commonwealth v. Simmons, 65 Mass.App. Ct. 274, 284, 838 N.E.2d 1257 (2005), and we granted the Commonwealth's application for further appellate review. We now reverse the denial of the defendant's fourth motion for postconviction relief and remand the case for resentencing, but for different reasons from those articulated by the Appeals Court.

1. Background. On September 22, 1981, the defendant, represented by counsel, pleaded guilty to thirteen indictments.¹ Six indictments alleged armed robbery, for which a Superior Court judge (trial judge) sentenced the defendant to prison sentences of from eight to twelve years, to be served concurrently. As occurs regularly in the courts of the Commonwealth, the remaining indictments were "placed on file," which is to say sentencing was suspended indefinitely, but the cases were not dismissed.² Although the record indicates that the defendant consented to this disposition, no transcript of the September 22, 1981, proceedings is available. Among these filed indictments was no. 81-1918 for armed assault with intent to rob.

Shortly after the defendant was released from his sentences on the armed robbery convictions, he was arrested for a new charge of armed robbery, arising out of his involvement in a December 5, 1986, crime.³ At his December 9, 1986, arraignment on those charges, the Commonwealth's motion to have indictment no. 81-1918 removed from the file and brought forward was granted.⁴ On January 2, 1987, a Superior Court judge (sentencing judge) uninvolved with the 1981 proceedings sentenced the defendant to a prison term of from eighteen to twenty years on indictment no. 81-1918. The Commonwealth acknowledges that the 1986 armed robbery charge caused the prosecutor to move for the removal of the indictment from the file for sentencing.

The defendant first challenged this sentence with a pro se motion for a new trial in 1994. His motion claimed that no plea colloquy occurred on September 22, 1981, and that he was not in the court room when his guilty plea was tendered; likewise, he alleged a version of the proceedings in which he did not consent to filing the indictments. The motion was denied by the trial judge. On appeal, the Commonwealth produced an affidavit from the trial judge, who had retired, indicating that he had no specific recollection of the original sentencing, but his usual practice conformed with Mass. R.Crim. P. 12, 378 Mass. 866 (1979). The Appeals Court concluded that the Commonwealth met its burden of showing substantial compliance with rule 12(c), on the basis of the trial judge's affidavit. Turning to the question of the defendant's consent to the filing of the case, the Appeals Court noted that the trial judge's affidavit was silent as to his practice in this regard and remanded the case to the Superior Court for further reconstruction of the record. After an unsuccessful attempt to contact the trial judge for further investigation, the Commonwealth moved for reconsideration of the interlocutory order. Pointing to the handwritten notes in the clerk's log, the Commonwealth argued that the defendant gave his consent to the filing of the case. On the basis of the Commonwealth's submission, the denial of the defendant's motion for a new trial was affirmed. Commonwealth v. Simmons, 48 Mass.App.Ct. 1115, 721 N.E.2d 944 (2000). We denied further appellate review. Commonwealth v. Simmons, 432 Mass. 1105, 733 N.E.2d 1066 (2000).

Claiming newly discovered evidence, the defendant filed a second pro se motion for a new trial in April, 2002. The motion was denied after another Superior Court judge found that no such evidence existed and the defendant's allegations of prejudice from the lost transcript either were waived or decided previously. This decision was affirmed by the Appeals Court. Commonwealth v. Simmons, 57 Mass.App.Ct. 1107, 782 N.E.2d 556 (2003).

In September, 2002, the defendant filed a motion for jail credit, arguing that his sentence on indictment no. 81-1918 did not properly account for his detention time prior to the case being filed. After counsel was appointed for the defendant, the motion was denied on grounds that the defendant's pretrial detention was accounted for at his 1981 sentencing on the six armed robberies. The defendant did not appeal from this ruling.

Now represented by counsel, the defendant filed the motion presently before the court in August, 2003, fashioning it as a motion "to vacate sentence, dismiss indictment, and credit defendant for time served under an erroneous sentence." The motion was denied, but the Appeals Court vacated the sentence on indictment no. 81-1918 and ordered that the defendant be given credit for time served thereunder on the sentence imposed for the 1986 armed robbery. Commonwealth v. Simmons, 65 Mass.App.Ct. 274, 284, 838 N.E.2d 1257 (2005). In an exhaustively researched opinion, the Appeals Court rejected the practice of imposing a sentence on a previously filed indictment where the defendant had not succeeded in overturning a related conviction on appeal or been found to violate express conditions articulated and consented to at the time of filing. Id. at 282-284, 838 N.E.2d 1257.

2. Analysis. a. Waiver. The defendant's claims are waived. There can be no disagreement that the defendant was aware of the basis of his claims since his sentencing in 1986, yet he failed to object or appeal from the sentence directly and omitted the arguments he now makes from three prior challenges.⁵ Nonetheless, we evaluate the claims to determine whether there exists a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294-295, 780 N.E.2d 58 (2002). In circumstances where a defendant is successful in identifying an error, we find a substantial risk of a miscarriage of justice only "when we have `a serious doubt whether the result ... might have been different had the error not been made.'" Id. at 297, 780 N.E.2d 58, quoting Commonwealth v. LeFave, 430 Mass. 169, 174, 714 N.E.2d 805 (1999). As we stated in the Randolph case, only rarely will an error exert an influence of this magnitude. Id. We conclude that this is such a case.

b. Rule 30(a). The Appeals Court treated the defendant's motion as if it were made under Mass. R.Crim. P. 30(a), 378 Mass. 900 (1979), despite the absence of any such designation in the motion itself. This interpretation gave the defendant the benefit of the ambiguity created by his silence on this matter. The motion sought to vacate the sentence because of alleged violations of his constitutional right to speedy sentencing and the sentencing judge's consideration of impermissible factors. The defendant expressly sought the crediting of his allegedly erroneous time served against his 1986 sentence, and not a new trial, as would characterize a motion under Mass. R.Crim. P 30(b), 378 Mass. 900 (1979). The Appeals Court's treatment of the motion as if made pursuant to rule 30(a) therefore was proper.⁶

In Commonwealth v. Lupo, 394 Mass. 644, 646, 476 N.E.2d 963 (1985), we stated in dictum that "rule 30(a) is intended primarily to provide relief for defendants incarcerated in violation of ... the laws of the Commonwealth." The record is ambiguous as to whether the defendant is still serving the eighteen-to-twenty year sentence that he challenges here, although there are indications that he is not.⁷ Even assuming that the defendant is not incarcerated currently for the sentence he is challenging, we properly may consider his motion under rule 30(a) and reach the merits of his appeal. The defendant's motion does not raise a hypothetical issue because he currently is incarcerated under a "from and after" sentence that is structurally related to the sentence imposed on indictment no. 81-1918. See Commonwealth v. Azar, 444 Mass. 72, 77, 825 N.E.2d 999 (2005). Cf. Rodwell v. Commonwealth, 432 Mass. 1016, 1018, 732 N.E.2d 287 (2000) (speculating that rule 30[a] motion would be unlikely to assist defendant who had completed challenged sentence but still was incarcerated on another conviction). Because we find in his favor, his erroneous time served can be credited against that sentence. The circumstances here are rather unusual, and we choose to address the motion as one properly brought under rule 30(a).

c. "Placed on file." The Appeals Court concluded that, based on prior practice, the procedure of reviewing a case placed on file has been approved in only two circumstances: (1) when a related conviction is reversed on appeal, see, e.g., Commonwealth v. Bianco, 390 Mass. 254, 255, 454 N.E.2d 901 (1983); and (2) on breach of explicit conditions imposed in connection with the filing, see, e.g., Commonwealth v. Maloney, 145 Mass. 205, 211, 13 N.E. 482 (1887); Commonwealth v. Pelletier, 62 Mass.App.Ct. 145 146-147, 815 N.E.2d 274 (2004). Commonwealth v. Simmons, supra at 278-279, 838 N.E.2d 1257. Because the defendant's circumstances did not fall into either of these categories, the Appeals Court held that indictment no. 81-1918 was not removed properly from the file.

Few aspects of our...