Commonwealth v. Jackson

• Citation: 80 Mass.App.Ct. 528,953 N.E.2d 1285
• Decision Date: 29 September 2011
• Docket Number: No. 10–P–116.,10–P–116.
• Parties: COMMONWEALTHv.Gene A. JACKSON.
• Court: Appeals Court of Massachusetts

80 Mass.App.Ct. 528

953 N.E.2d 1285

COMMONWEALTH

v.Gene A. JACKSON.

No. 10–P–116.

Appeals Court of Massachusetts, Middlesex.

Argued Jan. 3, 2011.Decided Sept. 29, 2011.

Malcolm L. Burdine, Worcester, for the defendant.Stephen C. Hoctor, Assistant District Attorney, for the Commonwealth.Present: KANTROWITZ, KATZMANN, & MEADE, JJ.KATZMANN, J.

A complaint issued in the Cambridge Division of the District Court Department, charging the defendant with aggravated assault and battery by means of a dangerous weapon, in violation of G.L. c. 265, § 15A( c ) (count 1); shoplifting merchandise, in violation of G.L. c. 266, § 30A (count 2); assault and battery of a pregnant person, in violation of G.L. c. 265 § 13A( b ) (count 3); and assault and battery, in violation of G.L. c. 265, § 13A (count 4). After a jury-waived trial, a District Court judge found the defendant guilty of assault and battery by means of a dangerous weapon (as a lesser included offense of aggravated assault and battery by means of a dangerous weapon) and of assault and battery. The defendant now appeals, contending that his convictions were duplicative and that the judge erred in revising and revoking his sentence. We affirm.

1. Background. Under the familiar standard, Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979), the judge could have found the following. On March 29, 2009, Tiffany Pimentel was working as a loss prevention officer at Shaw's Supermarket in the Porter Square area of Cambridge. While watching the surveillance system, she noticed the defendant placing various food items into a bag. The defendant then left the store. Pimentel left her office and followed him a short distance on foot. She was approximately one-half car length behind him. The defendant then turned around and lunged at her. Pimentel screamed that she was pregnant and assumed a defensive position as the defendant was punching her high in her body and stomach. When Pimentel crouched down, the defendant, who was wearing running shoes, kicked her in the legs five to seven times.

2. Discussion. a. Duplicative charges. The defendant argues, for the first time on appeal, that his conviction of assault and battery is duplicative of his conviction of assault and battery by means of a dangerous weapon because the former is a lesser included offense of the latter. “Where the defendant neither raised the issue of duplicative convictions before the trial court, nor filed a motion to revise or revoke the sentence under Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979), we review his claim only to determine if a substantial risk of a miscarriage occurred.” Commonwealth v. Vick, 454 Mass. 418, 430 n. 13, 910 N.E.2d 339 (2009). “Assault and battery is a lesser included offense of assault and battery by means of a dangerous weapon.” Commonwealth v. Connolly, 49 Mass.App.Ct. 424, 426, 730 N.E.2d 318 (2000). See G.L. c. 265, §§ 13A, 15A( c ). Convictions of greater and lesser included offenses are allowed where they “rest on separate and distinct acts.” Commonwealth v. King, 445 Mass. 217, 225, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006). “Whether a defendant's actions constitute separate and distinct acts or must be considered a single crime is a question of fact for the [fact finder] to resolve.” Commonwealth v. Vick, 454 Mass. at 435 n. 16, 910 N.E.2d 339. When making this determination the fact finder must decide whether the acts are so closely related in fact as to constitute in substance but a single crime. Commonwealth v. St. Pierre, 377 Mass. 650, 662–663, 387 N.E.2d 1135 (1979). As this was a bench trial, we presume that the judge instructed himself correctly on the law. Commonwealth v. Ortiz, 431 Mass. 134, 141, 725 N.E.2d 1030 (2000). See Commonwealth v. Kerns, 449 Mass. 641, 650 n. 13, 871 N.E.2d 433 (2007).

Here, the judge could have found that two separate acts occurred. The first, assault and battery, occurred when the defendant began punching Pimentel. The second act, assault and battery by means of a dangerous weapon, occurred when the defendant began to kick Pimentel with his shoe. This view is further supported by Pimentel's testimony. She testified that when the defendant first attacked her, “he was attempting to hit [her] up high and in [her] body, [her] stomach, and [she] was just blocking everything.” As she crouched to avoid the attack, the second phase began when the defendant started punching and kicking her numerous times in the legs. Different phases of a single attack can be distinguished as separate and distinct. See Commonwealth v. Connolly, 49 Mass.App.Ct. at 425, 730 N.E.2d 318 (assault and battery charge could have been a wholly separate act, and thus not a lesser included offense of assault and battery with a dangerous weapon, since the defendant first hit the victim with his fists, and only after the victim fell to the ground did he kick the victim with his sneaker). Thus, there were two separate acts upon which the judge could reasonably base the two convictions. See Commonwealth v. Lord, 55 Mass.App.Ct. 265, 272, 770 N.E.2d 520 (2002). The defendant's convictions were not duplicative.

b. Sentencing. On October 6, 2009, at the end of a one-day bench trial, the District Court judge sentenced the defendant on his conviction assault and battery by means of a dangerous weapon and assault and battery. On the first, the defendant was sentenced to two years in the house of correction, with one year to serve and the balance suspended for four years. On the second, the judge imposed a concurrent sentence of two years in the house of correction, with one year to serve and the balance suspended for four years. The sentences were to start from and after an eighteen-month sentence that the defendant was currently serving.

At some point later in the afternoon after the sentence had been imposed, and the parties had left the courtroom, the probation department informed the judge that the defendant refused to sign the conditions of probation form and that the defendant was not happy with judge's sentence. The judge held a hearing ten days later, on October 16, 2009. The defendant's counsel explained that he was surprised by the development, that he had spoken with the defendant earlier that day and on the previous day, and that the defendant stated “fairly adamantly and repeatedly that his issue was the length of probation.” Counsel explained that “I mention as a practical matter there might be [probation] violations already afoot.... We went over it a few times so he understood probation and what a suspended sentence was, and I think he did understand and he made it clear that he wanted me to make it clear to the Court that he objected to probation.” At the hearing, the judge explained to the defendant the following:

“When I sentence, what I try to do is take into fact a large number of conditions, who you are, the victim, your past history, what I can do to assist you.... I often impose sentences which have probation afterwards and the reason I do it and the Commonwealth differs as they do in this case and Probation frequently does because they say ... he is not a good candidate for probation. The philosophical problem I have about that approach, which I've expressed, is what happens when you get out of jail. You come out onto the street and you've been in prison.... You've gotten yourself into a lot of trouble again and again and again and I'm not going to change my sentence.... [I]f I were going to change my sentence, I would make it a lot longer.... I could send you to jail for five years; two-and-a-half years now and then two-and-a-half years on and after. The only reason I would do that would be just to give up on you. I'm not going to do that.... I expect you sign the conditions of probation and if you don't I'll be able to impose another sentence because you'll be in violation of my conditions of probation.... I hope you'll consider what I've said with your counsel, reflect on it. And, probation, if he refuses to sign, then what I will do is I will vacate my sentence and impose a very different sentence ... because then you're saying give up on me and I'll do that. But I'll tell you what I'll be doing is I'm going to make your jail sentence longer. It's not going to be two-and-a half years. I don't want to do that but that's something I could do, so I'm going to go off the bench.”

After the judge had declared a recess so that the defendant could think about his decision and consult with his attorney, counsel informed the judge that the defendant still refused to sign the conditions of probation form despite his advice that the defendant sign it and his explanation of the consequences if the defendant refused to do so. The judge then announced that he was vacating his original sentence sua sponte and that he would impose a new sentence. The judge sentenced the defendant to two and one-half years of incarceration for count 1 and eighteen months of incarceration for count 4, to be served from and after count 1. These sentences were no longer to run from and after the sentence the defendant was already serving but, rather, would run concurrently.

The defendant contends that the judge's revocation of the original sentence and imposition of a lengthier sentence was impermissible. “A judge has considerable latitude within the framework of the applicable statute to determine the appropriate individualized sentence.... That sentence should reflect the judge's careful assessment of several goals: punishment, deterrence, protection of the public, and rehabilitation.” Commonwealth v. Goodwin, 414 Mass. 88, 92, 605 N.E.2d 827 (1993). “[T]he judge ha[s] the right to be concerned about the defendant's character and his amenability to rehabilitation.” Id. at 93, 605 N.E.2d 827. Under Mass.R.Crim.P. 29(a), a judge is permitted, on his or her own motion, to revise or revoke a sentence...