Commonwealth v. Leggett

• Decision Date: 14 November 2012
• Docket Number: No. 10–P–1092.,10–P–1092.
• Citation: 978 N.E.2d 563,82 Mass.App.Ct. 730
• Parties: COMMONWEALTH v. Lavar LEGGETT.
• Court: Appeals Court of Massachusetts

82 Mass.App.Ct. 730

978 N.E.2d 563

COMMONWEALTH

v.Lavar LEGGETT.

No. 10–P–1092.

Appeals Court of Massachusetts, Suffolk.

Argued Oct. 11, 2011.

Decided Nov. 14, 2012.

Colleen A. Tynan for the defendant.

Zachary Hillman, Assistant District Attorney, for the Commonwealth.

Present: BERRY, COHEN, & SIKORA, JJ.

SIKORA, J.

This appeal requires us to measure a reconstructed sentencing scheme against the standards of the prohibition against double jeopardy. After service of a portion of his original sentencing program upon four related convictions, the defendant moved successfully for resentencing by a different judge. He contends that the resulting scheme punishes him twice for two of the convictions and thereby violates the ban against double jeopardy. No prior Massachusetts decision appears to have encountered our question squarely. However, Federal precedents provide substantial guidance. For the following reasons, we affirm the judge's denial of relief from the second sentencing scheme.

Background. 1. Underlying convictions. The convictions of the defendant, Lavar Leggett, resulted from a Superior Court jury trial presenting the following evidence. On June 22, 1996, at approximately 3:50 a.m., Joseph Cassell, the victim, got out of a taxicab at the corner of Blue Hill Avenue and Johnston Road in the Dorchestersection of Boston. As Cassell walked down Johnston Road in the direction of his home, he heard shouts and then gunshots. He then saw two persons walking toward him; at that point he began to run toward his home. As Cassell ran, he received a shot in the back and fell to the ground. As he began to get up, he saw a gun in his face. Cassell grabbed the barrel and pushed it away. He started to run again. He then absorbed three shots, one in the scapula, one in the upper middle back, and one in the right arm. As he staggered home, he noticed that the assailants had fled toward Blue Hill Avenue. Cassell underwent six days of hospital treatment for his injuries. He returned subsequently for removal of the bullet from his right arm.

At the time of the shooting, Boston police Detectives Brian Black and Kevin McGoldrick were traveling in an unmarked cruiser along Blue Hill Avenue toward Johnston Road. They saw two individuals sprint across Blue Hill Avenue, followed seconds later by a third person. The third figure, later identified as the defendant, was holding his right arm down by his side as he ran. The detectives pursued the individuals; McGoldrick remained in the police cruiser, and Black chased the defendant on foot. McGoldrick alerted Black that the defendant had a gun in his right hand. As the defendant raced away from Black he discarded the weapon. McGoldrick intercepted and arrested the defendant, and placed him in the cruiser. Detective Black then returned to the path of the chase and recovered a .22 caliber revolver. The serial number on the gun had been “obliterated.” Ballistics testing later showed that recovered shell casings and the bullet removed from the victim's arm were fired from the recovered revolver.

2. Procedural history. Approximately one month later a Suffolk County grand jury returned four indictments against the defendant: possession of a firearm without a license, G.L. c. 269, § 10( a ) (count 1); receiving a firearm with knowledge of its defaced serial number, G.L. c. 269, § 11C (count 2); assault and battery by means of a dangerous weapon (a handgun), G.L. c. 265, § 15A (count 3); and assault while armed with a firearm and with intent to murder, G.L. c. 265, § 18( b ) (count 4).

In November of 1997, a Superior Court jury convicted the defendant of all four charges. The judge imposed the following sentences: (a) upon the offense of armed assault with intent to murder, a term of from nineteen to twenty years in State prison; (b) upon the offense of assault and battery by means of a dangerous weapon, a consecutive term of from nine to ten years in State prison; (c) upon the conviction of unlawful possession of a firearm, a sentence of from four years and eleven months to five years in State prison to run from and after the sentence for assault and battery by means of a dangerous weapon; and (d) upon the conviction of knowing receipt of a firearm with a defaced serial number, a sentence of from one to two years to run concurrently with the sentence for unlawful possession of a firearm.

In 1999, this court affirmed the defendant's convictions. See Commonwealth v. Morris, 48 Mass.App.Ct. 1113, 721 N.E.2d 16 (1999) (companion case). The Supreme Judicial Court denied further appellate review. See Commonwealth v. Leggett, 431 Mass. 1102 (2000). In 2000, the Appellate Division of the Superior Court revised the original sentencing scheme so as to have the three lesser sentences run concurrently with and within the term of from nineteen to twenty years for the conviction of armed assault with intent to murder. ¹Then, in 2005, the defendant moved for resentencing upon the ground of improper comments made by the judge during the original sentencing hearing. The trial judge denied his motion. On appeal, this court vacated the sentences and remanded to the Superior Court for resentencing by a different judge. See Commonwealth v. Leggett, 73 Mass.App.Ct. 1118, 900 N.E.2d 535 (2009).

In October of 2009, a new judge resentenced the defendant as follows: (a) a term of from sixteen years to sixteen years and one day for armed assault with intent to murder, retroactive to the date of arrest on June 22, 1996; (b) a five-year probationary period for assault and battery by means of a dangerous weapon, from and after completion of the prison term for armed assault with intent to murder; and (c) a two-year probationary period for knowing receipt of a firearm with a defaced serial number, concurrent with the probationary period for assault and battery by means of a dangerous weapon.^2,3

By submission of a pro se letter to the resentencing judge in February of 2010, the defendant argued that he had fully served the original sentence of from nine to ten years upon the conviction of assault and battery by means of a dangerous weapon (extending concurrently from 1996 to 2006, as ordered by the Appellate Division) and that the revised sentence of a five-year postrelease probation constituted unlawful multiple punishment for the same offense. The judge treated the letter as a motion under Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), to correct an unlawful sentence, and denied it. The defendant submitted a pro se motion for reconsideration; the judge denied it also.

The defendant appeals from those denials. Now with the assistance of counsel, he maintains that both postrelease probationary periods imposed by the resentencing judge (the five-year probationary term for assault and battery by means of a dangerous weapon, and the concurrent two-year probationary term for knowing possession of a firearm with a defaced serial number) operate redundantly with the terms of incarceration already completed, punish him twice for the underlying offenses, and therefore subject him to double jeopardy and deny him due process of law. In February of 2011, the defendant gained release from prison; he is currently serving the probationary periods of the resentencing scheme.

Analysis. The defendant invokes the protection against double jeopardy provided by both Federal and Massachusetts law. The Fifth Amendment to the United States Constitution states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” That clause applies to the States through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). While the guarantee against double jeopardy does not appear expressly in the Declaration of Rights of the Massachusetts Constitution, it is an explicit statutory right and a deeply rooted common-law principle. See G.L. c. 263, § 7; ⁴Thames v. Commonwealth, 365 Mass. 477, 479, 312 N.E.2d 569 (1974); Commonwealth v. Hrycenko, 417 Mass. 309, 316, 630 N.E.2d 258 (1994); Commonwealth v. Bloom, 53 Mass.App.Ct. 476, 477, 760 N.E.2d 297 (2001). Under both the Federal and Massachusetts doctrines, the prohibition operates against three categories of jeopardy: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Luk v. Commonwealth, 421 Mass. 415, 419, 658 N.E.2d 664 (1995). Commonwealth v. Bloom, supra.

Here, the defendant asserts a claim of forbidden multiple punishment. Our analysis treats the Federal constitutional standard and the Massachusetts common-law rule as equivalent in the circumstances of this case. ⁵ Under Massachusetts law, multiple punishment results from a sentence in excess of the authorized legislative penalty. Aldoupolis v. Commonwealth, 386 Mass. 260, 272, 435 N.E.2d 330, cert. denied, 459 U.S. 864, 103 S.Ct. 142, 74 L.Ed.2d 120 (1982). Under the Federal standard, it will result from a sentence in which “punishment already endured is not fully subtracted” from the new sanction. North Carolina v. Pearce, supra at 718, 89 S.Ct. 2072.

1. Application of double jeopardy standards to a compound sentencing scheme. A judge's sentencing scheme for a defendant convicted of multiple offenses at one trial is typically an integrated plan and not a mechanical formation of separate sanctions. See Wolcott, petitioner, 32 Mass.App.Ct. 473, 477–478 & n. 4, 591 N.E.2d 679 (1992). It materializes from several sources of information including, but not limited to, the aggravating or mitigating circumstances of the underlying offenses; the defendant's criminal history; formal or informal guidelines; and the fundamental criminal law objectives of appropriate incapacitation, deterrence, retribution, and...