Kuklis v. Com.

• Decision Date: 03 March 1972
• Citation: 280 N.E.2d 155,361 Mass. 302
• Parties: Charles A. KUKLIS v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 155

280 N.E.2d 155

361 Mass. 302

Charles A. KUKLIS v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 4, 1971.

Decided March 3, 1972.

Edward Rudnitsky, Boston (James J. Gillis, Jr., Boston, with him), for petitioner.

Charles E. Chase, Asst. Atty. Gen., for the Commonwealth.

Before TAURO, C.J., and REARDON, GUIRICO and HENNESSEY, JJ. HENNESSEY, Justice.

This writ of error was heard in the county court by the single justice who made findings of facts as to some pertinent issues and reserved and reported the matter without decision to the full court. Kuklis was admitted to bail, by order of the single justice, pending a decision by the full court on the issues here presented.

We summarize the facts as determined from the findings of the single justice, a stipulation filed by the parties, and the transcript of the proceedings below. Kuklis was tried on two complaints in the District Court and found guilty of being present where a narcotic drug (marihuana) was kept and possession of a narcotic drug (marihuana). He was also bound over for the grand jury and duly indicated for possession of a narcotic drug with intent to sell (marihuana). ¹ The two District Court complaints are hereinafter referred to as the lesser charges. The alleged time and place of offence were the same in all three cases. Kuklis appealed the guilty findings and all three cases came up for trial in the Superior Court. Kuklis there pleaded guilty to all charges, was sentenced on the lesser charges to concurrent one year sentences in the House of Correction at Dedham, and on the indictment he received a suspended sentence of five years and one day at Massachusetts Correctional Institution at Concord together with three years of probation to be served at the expiration of the house of correction sentences.

At the hearing before a Superior Court judge, Kuklis's counsel stated that Kuklis wished to plead guilty to the indictment. Defence counsel then asked, 'Before we do that, do you want to clear up the dismissal of the two other complaints?' On the suggestion of the district attorney, the judge proceeded to hear guilty pleas by Kuklis on all three cases. The arresting officer then testified as to the facts as follows: Kuklis was arrested in a room of his apartment and in the same room were found about two kilos of marihuana and a set of scales. All three charges were grounded on this one arrest. Kuklis stated that he was in sole possession of the room and everything in it. Other persons who were arrested in the apartment were charged with being in the presence of marihuana, but none other than Kuklis was charged with possession of marihuana or possession of marihuana with intent to sell. There was relatively lengthy interrogation of Kuklis as to whether the guilty pleas were intelligently, freely and voluntarily made. The judge found that the guilty pleas were intelligently, freely and voluntarily made and accepted the pleas.

The district attorney then recommended, and Kuklis's counsel requested, that the lesser charges be dismissed as duplicitous. After sentencing, Kuklis moved to withdraw all of his guilty pleas stating as his reason that he was hoping that the lesser charges would be considered duplicitous and not because he claimed to be innocent. The judge denied the motion.

The single justice found that 'all three pleas of guilty were freely, intelligently, and voluntarily made by Kuklis (a) without any improper inducement; (b) without any misunderstanding or mistake by him or his counsel; and (c) with full knowledge of the circumstances and risks; and (d) after appropriate and full inquiry of Kuklis by, and in the presence of (the judge).' Kuklis now seeks dismissal of the two lesser charges as duplicitous.

1. A plea of guilty is an admission of the facts charged and 'is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. . . . When one so pleads he may be held bound.' Kercheval v. United States, 274 U.S. 220, 223--224, 47 S.Ct. 582, 583, 71 L.Ed. 1009. The trial judge has the duty to insure that the pleas are voluntarily and intelligently made. Boykin v. Alabama, 395 U.S. 238, 242--244, 89 S.Ct. 1709, 23 L.Ed.2d 274. The single justice found that the pleas here were freely, intelligently and voluntarily made. The findings were based upon extensive and appropriate questioning of Kuklis before the pleas were accepted by the Superior Court judge and by further extensive questioning by that judge when Kuklis later moved to withdraw the pleas. Kuklis's responses to several of these questions were that he understood that his guilty pleas were sufficient proof to convict him of all charges and constituted admissions of all the facts alleged in the indictments.

Kuklis now argues that sentencing him on all three charges, for what he contends was 'the same act,' contravened his constitutional protection against double jeopardy. More precisely stated, the issue he raises is that there is an identity among the three charges which precludes punishment upon more than one charge. Where there is identity between two charges, the imposition of two sentences results in two punishments for the same offence. The Commonwealth argues that, even if it is found that there is identity among the three charges here, the legislative intent was that there should be punishment for each and all of the violations. 'There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction' (citations omitted). Albrecht v. United States, 273 U.S. 1, 11, 47 S.Ct. 250, 71 L.Ed. 505. This rationale has been applied to uphold multiple convictions upon narcotics charges where there was an identity among the several charges. Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405. United States v. Funk, 412 F.2d 452 (8th Cir.). State v. Harris, 63 N.J.Super. 184, 164 A.2d 369. State v. McDonald, 92 N.J.Super. 448, 224 A.2d 18. We conclude, however, that it was not the intent of the Massachusetts Legislature that this reasoning should be applied to identical charges arising under the three statutes involved in the case before us. It follows that the judgments of guilt cannot all stand if there was identity among the three charges.

The rule for the determination of identity between charges has been stated in Morey v. Commonwealth, 108 Mass. 433, 434, as follows: 'A single act may be an offence against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other' (emphasis supplied). This test to determine whether one act or transaction can give rise to one or many statutory violations without infringing the defendant's double jeopardy protection was later adopted by the United States Supreme Court. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct 80, 76 L.Ed. 306. Gore v. United States, 357 U.S. 386, 390--393, 78 S.Ct. 1280, 2 L.Ed.2d 1405. It has been applied by our court on numerous occasions. ² The same principle is otherwise stated, in cases involving consecutive prosecutions, that the test of identity is whether the defendant might have been convicted in the earlier prosecution by proof of the facts charged in the later indictment or complaint. Commonwealth v. Roby, 12 Pick. 496, 504. Commonwealth v. Mahoney, 331 Mass. 510, 512, 120 N.E.2d 645. 'In considering the identity of the offence, it must appear by the plea, that the offence charged in both cases was the same in law and in fact. The plea will be vicious, if the offences charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact.' Commonwealth v. Roby, supra, at 504. See Commonwealth v. DiStasio, 297 Mass. 347, 356, 8 N.E.2d 923, and cases cited; Commonwealth v. Azer, 308 Mass. 153, 156, 31 N.E.2d 549, and cases cited. The Commonwealth argues that the rule that has been applied in some other jurisdictions is that convictions are permitted under two statutes if either statute requires proof of an additional fact which the other does not. Despite the wording of their rule, we believe that these jurisdictions are applying the same principles as those stated in the Morey case. Matthews v. Swope, 111 F.2d 697 (9th Cir.). Kendrick v. United States, 99 U.S.App.D.C. 173, 238 F.2d 34 (D.C. Cir.). People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840. Assuming that those other jurisdictions have stated their rule precisely, it is not the rule in Massachusetts. ³

Applying these principles, we conclude that there was duplication in the charges of possession of marihuana and possession of marihuana with intent to sell, and it was error to impose sentence on both charges. The defendant has been harmed because the several sentences were not merely concurrent in their operation. See Green v. United States, 274 F.2d 59, 61 (1st Cir.), D. 365 U.S. 301, 306, 81 S.Ct. 653, 5 L.Ed.2d 670. Since the same time, place and type...