Stewart v. Commissioner of Correction

• Decision Date: 20 May 1983
• Parties: Robert Edward STEWART v. COMMISSIONER OF CORRECTION et al. 1
• Court: Appeals Court of Massachusetts

Page 377

449 N.E.2d 377

16 Mass.App.Ct. 57

Robert Edward STEWART v. COMMISSIONER OF CORRECTION et al. ¹

Appeals Court of Massachusetts,

Suffolk.

Argued Jan. 10, 1983.

Decided May 20, 1983.

Peter G. DeGelleke, Bedford, for plaintiff.

Michael B. Roitman, Asst. Atty. Gen., for defendants.

Before GREANEY, KAPLAN and DREBEN, JJ.

DREBEN, Justice.

The plaintiff sought a declaration that a life sentence for second degree murder he is currently serving commenced on November 18, 1974. A judge of the Superior Court concluded that that sentence, as well as a sentence the plaintiff was serving for armed assault in a dwelling house, began on November 23, 1979. We agree with the Superior Court judge that the murder sentence began on November 23, 1979, but leave in place the date of commencement of the armed assault sentence, that is, November 18, 1974.

The facts are not in dispute. On November 18, 1974, the plaintiff was convicted of second degree felony-murder and of armed assault in a dwelling and was sentenced to consecutive life terms to be served on and after the expiration of a New Hampshire sentence he was then serving on unrelated charges. The Supreme Judicial Court affirmed his convictions but, applying the "same evidence" test, held that consecutive sentences could not be imposed because "the conviction of armed assault in a dwelling house did not require proof of any facts different from those necessary to prove the murder charge based on the commission of the felony." Commonwealth v. Stewart, 375 Mass. 380, 392-393, 377 N.E.2d 693 (1978). The case was remanded to the Superior Court, with instructions that "[t]he sentence on the armed assault charge is to be vacated and a new sentencing hearing on that charge is to be held." Id. at 393, 377 N.E.2d 693. In a footnote the court indicated that the Superior Court judge had the option of placing the armed assault indictment on file with Stewart's consent. Id. at 394 n. 3, 377 N.E.2d 693. ²

On August 2, 1978, the plaintiff, appearing through his attorney (having waived his right to be present at the hearing), was resentenced. Although we sought the transcript of the hearing, we have been informed by both counsel that it is unavailable. The back of the indictment on the armed assault charge has in ink the following notation: "The sentence imposed on November 18, 1974 is this day revoked." The remaining relevant notations on the indictment are reproduced below. Those matters which are stamped appear in regular type; those matters which are added in ink appear in italics.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The mittimus and the docket entry contained the same language insofar as here relevant.

Arguing from the language that the sentence was "deemed by the court to have commenced on November 18, 1974," the plaintiff claims that the judge in 1978 imposed the same concurrent sentence on the murder indictment as on the armed assault indictment with the same effective date of November 18, 1974. This he claims follows from the remand in Stewart. Life sentences commencing on two different dates are, in his view, equivalent to consecutive life sentences and precluded by Stewart. He argues that the judge in 1978 had power to alter the murder sentence as that sentence had not yet commenced; the plaintiff was not paroled from a New Hampshire prison until November 23, 1979.

The Superior Court judge (not the same judge who resentenced the plaintiff in 1978) rejected the plaintiff's conclusion that the murder sentence began in 1974 and held that both sentences started on November 23, 1979. He ruled that the judge meant that the plaintiff's sentence "was deemed to have entered on November 18, 1974, nunc pro tunc, as if it had been properly entered in the first place prior to the appeal" (emphasis original), and that the sentence on the murder charge was left intact.

We agree that the sentence on the murder charge was left in place by the Supreme Judicial Court, Commonwealth v. Stewart, 375 Mass. at 393, 377 N.E.2d 693, and that the resentencing judge did not change or intend to disturb that sentence even if he might have had the power to do so. See Shabazz v. Commonwealth, 387 Mass. 291, 296, 439 N.E.2d 760 (1982). The contention that the valid murder sentence which commenced on the date of the plaintiff's release from New Hampshire was changed by the imposition of the new, less onerous, sentence on the armed assault charge appears to us to be as "extraordinary" as the claim made in Romano, petitioner, 355 Mass. 795, 796, 245 N.E.2d 821 (1969). In that case the court rejected a contention that a valid sentence imposed in 1967 to be served concurrently with 1956 sentences imposed for unrelated crimes should be reversed because the 1956 convictions were reversed. ⁴ Similarly here, there is no reason to disturb the valid murder sentence which began in 1979. That sentence was unaffected by the 1978 imposition of sentence on the armed assault charge.

On remand the resentencing judge intended to impose a sentence on the armed assault charge concurrent with the murder sentence. Had he imposed a sentence to begin in 1979, there would have been no problem. It appears that the judge mistakenly thought that the murder sentence began on November 18, 1974, the date it was imposed, and he, therefore, linked the commencement of the armed assault sentence to that date. The second Superior Court judge recognized the error and corrected the mittimus. See Bolduc v. Commissioner of Correction, 355 Mass. 765, 767, 247 N.E.2d 561 (1969); Mass.R.Crim.P. 42, 378 Mass. 919 (1979). We think, however, if the plaintiff can derive any benefit from the fact that the armed assault sentence "was deemed to have commenced" in 1974 that, despite the technical incongruity of the sentences, we should allow, in these circumstances, a construction of the sentence that favors his liberty. ⁵ Cf. Brown v. Commissioner of Correction, 336 Mass. 718, 722, 147 N.E.2d 782 (1958); Manning v. Superintendent, Mass....