Commonwealth v. Munafo
| Decision Date | 14 October 2022 |
| Docket Number | 21-P-537 |
| Parties | COMMONWEALTH v. MICHAEL R. MUNAFO. |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant challenges Superior Court orders revoking his probation and denying in part his postconviction motion to correct sentences. He contends that his convictions must be vacated because the underlying indictments were improperly amended and duplicative. We affirm.
Background.
In November 2015, a grand jury returned thirty-seven indictments against the defendant charging him with numerous offenses involving six stolen credit cards. On April 21, 2016, a change of plea hearing took place. The judge allowed the Commonwealth's motion to amend six of the indictments from larceny under $250 to receiving stolen property under $250 (RSP). Pursuant to the plea agreement, the Commonwealth dismissed nine indictments, and the defendant pleaded guilty to seventeen counts of misuse of a credit card under $250, five counts of improper use of a credit card over $250, and six counts of RSP.[1] The judge accepted the parties' agreement and sentenced the defendant to concurrent sentences of two years in the house of correction on the six convictions for RSP, followed by three years of probation on the twenty-two convictions for certain credit card offenses.
After completing the committed portion of his sentences, the defendant was released on probation. On May 6, 2019, a second Superior Court judge found that the defendant had violated the terms of his probation and sentenced him to concurrent terms of three to five years in State prison on the five convictions for improper use of a credit card. The judge terminated the defendant's probation for the seventeen remaining convictions.
In September 2020, the defendant filed a motion to correct sentences pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). The defendant moved to vacate his convictions for RSP because, he claimed, the amended indictments materially changed the work of the grand jury and were duplicative of the indictments for improper use of a credit card. He also moved to vacate all but six of his twenty-two convictions for improper use or misuse of a credit card, claiming that he could only be charged with one count of improper use or misuse for each stolen credit card.
In March 2021, the motion judge, who was also the plea judge, allowed the motion in part. He vacated six convictions for misuse of a credit card, and denied the motion as to the remaining convictions. The judge reasoned that he had allowed the Commonwealth's motion to amend the indictments from larceny to RSP "[w]ith the defendant's express assent," and that, as a result, the defendant had waived his argument as to the propriety of the amendments. The judge nonetheless found that RSP was a lesser included offense of improper use of a credit card, and therefore, the defendant's convictions on these charges were duplicative. The judge vacated six convictions for the more serious offense of misuse of a credit card in order to "preserve[] the sentence structure the parties intended in their plea agreement to the greatest extent possible."
Discussion.
Although the defendant styled his motion to correct sentences as a motion brought under Mass. R. Crim. P. 30 (a), he challenged the validity of his convictions, not the legality of the concomitant sentences. His motion was therefore governed by Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).
We review the denial of a Mass. R. Crim. P. 30 (b) motion for a significant error of law or abuse of discretion. See Commonwealth v. Lastowski, 478 Mass. 572, 575 (2018), quoting Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016). Substantial deference is warranted where, as here, the motion judge was also the plea judge. See Commonwealth v. Lys, 481 Mass. 1, 4 (2018), citing Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016).
Because the defendant did not object to the Commonwealth's motion to amend or move to dismiss the amended indictments pursuant to Mass. R. Crim. P. 13 (c), as appearing in 442 Mass. 1516 (2004), and G. L. c. 277, § 47A, he waived his right to argue the propriety of the amended indictments. Moreover, the defendant did not submit a transcript of the plea or any other evidence establishing that he either objected to or moved to dismiss the amended indictments. See Commonwealth v. Lopez, 426 Mass. 657, 663 (1998) (). Because the defendant assented to the amendments and pleaded guilty to each of the revised indictments, the motion was properly denied.
"A guilty plea, once accepted, leads to a final judgment of conviction; like a verdict of guilty, it is conclusive." Commonwealth v. Cabrera, 449 Mass. 825, 830 (2007). "A defendant's guilty plea, made knowingly, voluntarily and with the benefit of competent counsel, waives all nonjurisdictional defects in the proceedings prior to the entry of the guilty plea" (citation omitted). Commonwealth v. Berrios, 84 Mass.App.Ct. 521, 524 (2013). See G. L. c. 263, § 4A ().
A defendant can waive the right to be proceeded against by indictment provided that the waiver is "explicit, voluntary, and intelligent." Commonwealth v. Peterson, 445 Mass. 782, 788 (2006). See G. L. c. 263, § 4A. See also G. L. c. 277, § 47A (failure to object to defects in institution of prosecution or indictment before trial "shall constitute a waiver thereof"); Commonwealth v. Holley, 476 Mass. 114, 119 (2016) (). The defendant has not presented any evidence that suggests that his waiver was not freely given.[2] We next consider whether amending the indictments gave rise to a substantial risk of a miscarriage of justice.[3] See Commonwealth v. Adams, 485 Mass. 663, 669 & n.11 (2020). Although the record does not contain the specifics of the parties' plea agreement, the defendant's assent to amending the indictments on the same day that he pleaded guilty supports the inference that the amendments were part of the agreement. Cf. Commonwealth v. Ortiz-Peguero, 51 Mass.App.Ct. 90, 94 (2001) (). As the judge explained, in exchange for the defendant's guilty pleas, the Commonwealth moved to dismiss nine indictments (six of which carried a penalty of up to twenty years in State prison) and recommended a three-year term of probation on offenses for which the defendant faced up to five years in State prison.
That the defendant did not challenge his convictions until several years after he entered his pleas, after he violated probation and was sentenced to State prison, suggests that "when the plea was made, the defendant was satisfied with his arrangement; had been counselled as to its particulars, and could be lawfully deemed to have accepted what were the unforeseeable, but possible, consequences." Lopez, 426 Mass. at 663. Accordingly, we discern no substantial risk of a miscarriage of justice and conclude that the motion judge did not abuse his discretion.[4]
The defendant next contends that each conviction of RSP and all but six convictions of improper use of a credit card are duplicative and thus violate double jeopardy principles. Under Mass. R. Crim. P. 30 (a), a defendant can "raise a double jeopardy challenge to his continued confinement or restraint arising from a criminal conviction, whether from a guilty plea or a jury verdict, 'at any time, as of right.'" Commonwealth v. Negron, 462 Mass. 102, 105 (2012). We review for an abuse of discretion. See Commonwealth v. Perez, 477 Mass. 677, 681-682 (2017).
The defendant claims that he could only be punished for one count of misuse or improper use of a credit card for each of the six stolen credit cards. And because the motion judge found that RSP is a lesser included offense of improper use of a credit card, he could not be punished for both crimes for the same credit card.[5]
"Both the double jeopardy clause of the Fifth Amendment to the United States Constitution and Massachusetts common law prohibit the imposition of multiple punishments for the same offense." Commonwealth v. Dykens, 473 Mass. 635, 638 (2016) . Convictions are duplicative where the acts underlying the offenses are "part of a continuous stream of conduct occurring within a short time frame...
To continue reading
Request your trial