Martin v. Commonwealth ( 2023 )

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SJC-13294
CLIFFORD MARTIN vs. COMMONWEALTH.
Suffolk. December 7, 2022. - May 22, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Wendlandt, &
Georges, JJ.
Practice, Criminal, Appellate Division, Sentence, Double
jeopardy. Constitutional Law, Sentence, Double jeopardy.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on December 10, 2021.
The case was heard by Kafker, J.
Ethan C. Stiles for the petitioner.
Julianne Campbell, Assistant District Attorney, for the
Commonwealth.
WENDLANDT, J. "Equality consists in the same treatment of
similar persons."1 This case presents the question whether a
defendant who has been serving the incarcerated portion of an
illegal sentence imposed by the Appellate Division of the
1 Aristotle, The Politics 286 (B. Jowett trans., Oxford
Univ. Press 1905) (Dover thrift ed. 2000).
2
Superior Court -- a panel comprising three Superior Court judges
-- has the same double jeopardy protections under our common law
as a defendant who has been serving the incarcerated portion of
an illegal sentence imposed by a single Superior Court judge.
The defendant, Clifford Martin,2 was resentenced by the
Appellate Division to a term of from four to six years
(resentence). The resentence was illegal because the four-year
term was less than the minimum term mandated by the Legislature
for the offense of which the defendant was convicted. See G. L.
c. 265, § 13F. Approximately six months after he was
resentenced, a clerk of the Superior Court became aware of the
error. The defendant, who was serving his term pursuant to the
resentence, was notified; and, following a hearing in the
Appellate Division, the defendant's resentence was altered, this
time to comply with the statutory mandate of a minimum term of
five years (altered sentence).
The defendant petitioned a single justice of this court
pursuant to G. L. c. 211, § 3, contending, inter alia, that the
altered sentence violated our common-law principles of double
jeopardy. Reaching the merits of the petition, the single
2 Although Clifford Martin commenced this action by filing a
petition in the county court, for convenience, we refer to him
as the defendant.
3
justice affirmed the Appellate Division's order imposing the
altered sentence.
Concluding that the resentence was illegal but that the
altered sentence violated our principles of double jeopardy as
set forth in our jurisprudence, see Commonwealth v. Selavka, 469
Mass. 502, 513-514 (2014), we now reverse the decision of the
single justice and direct that the Appellate Division's order
issuing the altered sentence be vacated and the order issuing
the resentence be reinstated.
1. Background. Following a jury trial, the defendant was
convicted of three counts of indecent assault and battery on a
person with an intellectual disability, pursuant to G. L.
c. 265, § 13F (§ 13F counts), and one count of indecent assault
and battery on a person 14 or older, pursuant to G. L. c. 265,
§ 13H (§ 13H count). The trial judge sentenced the defendant to
concurrent terms of from six to eight years in State prison on
two of the § 13F counts, and to three years of probation to be
served after his term of incarceration for the § 13H count and
the remaining § 13F count.
The defendant timely appealed his sentence to the Appellate
Division. On November 17, 2020, following a hearing, the
Appellate Division issued an order revising the defendant's
sentence, reducing the period of incarceration of from six to
eight years in prison on the two § 13F counts to from four to
4
six years in prison. In February 2021, the defendant
voluntarily withdrew his direct appeal from his conviction.
On May 5, 2021, a clerk of the Superior Court notified the
defendant that the resentence was illegal and that another
sentencing hearing would be held. The defendant objected to any
revision of the resentence on the ground that, given the passage
of more than sixty days from the date the resentence was
imposed, any alteration would violate principles of double
jeopardy.3 On May 13, 2021, following a hearing, the Appellate
Division revised the incarcerated portion of the defendant's
sentence to concurrent terms of from five to six years.
On December 10, 2021, the defendant filed a petition
pursuant to G. L. c. 211, § 3. The single justice denied the
petition on the merits, concluding that the resentence was
illegal, that the correction of the resentence after almost six
months did not violate double jeopardy principles, and that the
sixty-day time limit provided by Mass. R. Crim. P. 29 (a) (1),
as appearing in 474 Mass. 1503 (2016) (rule 29 [a]), did not
3 The defendant relied on Mass. R. Crim. P. 29 (a) (1), as
appearing in 474 Mass. 1503 (2016), which provided that "[t]he
trial judge, upon the judge's own motion, or the written motion
of the prosecutor, filed within sixty days of a sentence, may
revise or revoke such sentence if the judge determines that any
part of the disposition was illegal." The rule was subsequently
amended to replace the word "sentence" with "disposition."
Mass. R. Crim. P. 29 (a) (1), as appearing in 489 Mass. 1503(2022).
5
apply to proceedings in the Appellate Division.4 The defendant
timely appealed to the full court.
2. Discussion. a. Standard of review. This court
"review[s] a decision of a single justice pursuant to G. L.
c. 211, § 3, for clear error of law or abuse of discretion."
Nicholas-Taylor v. Commonwealth, 490 Mass. 552, 556 (2022).
"Because the defendant raises an issue of law, [this court]
review[s] the single justice's decision de novo." Garcia v.
Commonwealth, 487 Mass. 97, 101 (2021).
b. Legality of the resentence. We readily dispose of the
defendant's contention on appeal5 that the resentence was not
4 The defendant also filed, in the trial court, a motion for
relief from unlawful restraint pursuant to Mass. R. Crim. P.
30 (a), as appearing in 435 Mass. 1501 (2001) (rule 30 [a]),
seeking relief from the altered sentence, and arguing that the
Appellate Division violated double jeopardy principles when it
revised his resentence six months after its imposition. The
trial judge denied the motion on the ground that he had been
divested of jurisdiction when the defendant appealed to the
Appellate Division. The defendant then appealed from the denial
of his rule 30 (a) motion to the Appeals Court. Proceedings in
the Appeals Court were stayed pending the resolution of the
defendant's G. L. c. 211, § 3, petition. After the single
justice denied his petition, the defendant filed a motion to
dismiss his appeal in the Appeals Court; it was dismissed with
prejudice.
5 Before the Appellate Division, the defendant acknowledged
that "[t]he sentence of [from] four to six years was illegal"
because "the statute under which [the defendant] was convicted
requires a minimum of five years imprisonment." He altered
course in his memorandum of law in support of his rule 30 (a)
motion. See note 4, supra. As did the single justice, we
assume without deciding that the argument was not waived and
proceed to address it on the merits.
6
illegal.6 Such an argument is untenable for the reasons this
court recently explained in Commonwealth v. Rossetti, 489 Mass.
589 (2022). In particular, the defendant was convicted of three
counts of indecent assault and battery on a person with an
intellectual disability, in violation of G. L. c. 265, § 13F,
which provides, in relevant part:
"Whoever commits an indecent assault and battery on a
person with an intellectual disability knowing such person
to have an intellectual disability shall for the first
offense be punished by imprisonment in the [S]tate prison
for not less than five years or not more than ten years
. . . . Except in the case of a conviction for the first
offense for violation of this section, the imposition or
execution of the sentence shall not be suspended, and no
probation or parole shall be granted until the minimum
imprisonment herein provided for the offense shall have
been served." (Emphasis added.)
Accordingly, the minimum term of a sentence of incarceration
cannot be less than five years, and the single justice correctly
determined that the resentence of from four to six years was
illegal. See Commonwealth v. Brown, 431 Mass. 772, 777 (2000)
(addressing a similarly worded statute and concluding that
6 A sentence is illegal if it:
"is in excess of the punishment prescribed by the relevant
statutory provision or in some way contrary to the
applicable statute[;] . . . is premised on a major
misunderstanding by the sentencing judge as to the legal
bounds of his authority[;] . . . [or it] contradicts the
statutory provision in question, even where those
contradictions favor the defendant" (quotations and
citations omitted).
Commonwealth v. Walters, 479 Mass. 277, 280-281 (2018).
7
"[l]anguage such as this has always been interpreted in the same
manner: the 'not less than' phrase denotes a minimum
sentence"). See also Rossetti, supra at 594 ("when the
Legislature prescribes in an offense-specific statute that a
defendant shall be incarcerated for 'not less than' a certain
number of years, such language generally defines the 'minimum
term' permitted under the statute, according to the plain
meaning of such phrase. . . . In other words, if a judge
sentences a defendant to a term of incarceration, the judge has
no discretion to sentence the defendant to less than the minimum
term provided by the Legislature");7 id. at 623 n.4 (Wendlandt,
J., dissenting) ("where a statute sets forth both a minimum
sentence and a maximum sentence and specifies that the minimum
sentence is 'not less than' a specified number of years, the
sentence cannot be for 'less than' that specified number of
years").
c. Finality in resentencing by the Appellate Division. We
turn to the novel question before us: whether the Appellate
Division's increase of a defendant's illegal resentence, six
7 Contrary to the defendant's contention, the discretion
afforded in the statute to allow a judge alternatively to
sentence a defendant to a term of probation does not allow the
judge to reduce the minimum term where, as here, the judge
imposed a sentence of incarceration. See Rossetti, 489 Mass. at
596, 604.
8
months after it imposed the resentence, violates the principles
of double jeopardy.
Relevant to the present appeal, double jeopardy principles
prohibit the State from increasing a defendant's sentence once
the defendant's reasonable expectation of finality in the
imposed sentence has "crystallized." Selavka, 469 Mass. at 513.
In Selavka, we concluded that, after sixty days, double jeopardy
principles preclude the Commonwealth from altering a defendant's
sentence so as to make it more punitive. Id. at 513-514. This
protection from governmental overreach, we held, was required by
principles of double jeopardy even where the defendant's
sentence was "illegal" insofar as the imposed sentence did not
comply with the minimum sentence prescribed by the relevant
statute for the offense of which the defendant was convicted.
Id., quoting Dunbrack v. Commonwealth, 398 Mass. 502, 506 (1986)
(correction of illegal sentence permissible only when error "is
discovered in a timely manner" [emphasis added]). Sixty days
was a reasonable period, we determined, because rule 29 (a), as
appearing in 378 Mass. 899 (1979), set forth a period of sixty
days to revise and revoke a sentence to correct any errors. See
Selavka, supra.8 Even though rule 29 (a) did not provide a
8 Limiting the period for detecting sentencing errors to
sixty days creates "an effective institutional incentive for the
State to ascertain the correctness of sentencing orders at or
near the time of punishment, thereby preventing the harm and
9
mechanism for the Commonwealth to appeal an illegal sentence, we
nonetheless construed rule 29 (a) to permit the Commonwealth to
do so, id. at 508;9 but, we explained, once that sixty-day period
had lapsed, the Commonwealth was no longer free to "shatter" the
defendant's legitimate interest in repose, id. at 513, quoting
Double Jeopardy, 91 Harv. L. Rev. 101, 102 (1977). Absent some
action during this window, the time for the appellate process
has come to an end, and the defendant has a reasonable
expectation of finality in the sentence, even an illegal one.
Cf. Commonwealth v. Sanchez, 485 Mass. 491, 507 (2020) ("the
injustice that occur when the defendant's reasonable expectation
of finality has been frustrated for the legitimate but not
indomitable sake of accuracy." Weisbord & Thomas, Judicial
Sentencing Error and the Constitution, 96 B.U. L. Rev. 1617,
1617-1618 (2016).
We have determined that a sentence may even become final
before sixty days if the defendant has completed her sentence.
Commonwealth v. Ellsworth, 485 Mass. 29, 30-31, 34-35 (2020).
9 Until it was amended in 2016 to comply with our decision
in Selavka, rule 29 (a) provided:
"The trial judge upon his own motion or the written motion
of a defendant filed within sixty days after the imposition
of a sentence, . . . may, upon such terms and conditions as
he shall order, revise or revoke such sentence if it
appears that justice may not have been done."
Mass. R. Crim. P. 29 (a), 378 Mass. 899 (1979). Pursuant to the
2016 and 2022 amendments, the trial judge now may also do so
"upon . . . the written motion of the prosecutor" (emphasis
added). Mass. R. Crim. P. 29 (a) (1), as appearing in 489 Mass.
1503 (2022); Mass. R. Crim. P. 29 (a) (1), as appearing in 474
Mass. 1503 (2016).
10
defendant is understood to remain in continuing jeopardy from
the first prosecution throughout the appellate process"). This
protection, we said, was required by our common law of double
jeopardy principles to secure a defendant's finality interest.
Selavka, supra at 513.
The Commonwealth maintains that the defendant's finality
interest in this case is different from the interest of the
defendant in Selavka; it contends that because the defendant
here appealed his sentence to the Appellate Division, he has no
finality interest in an illegal sentence imposed by that body
even though 177 days had lapsed -– a period of time almost three
times as long as the sixty-day period set forth in Selavka.10
10In Selavka, 469 Mass. at 514, the defendant had served
seven months of the incarcerated portion of his illegal sentence
and had been released on parole when the Commonwealth sought to
correct it; here, the defendant already had served over one and
one-half years before the Appellate Division acted on his timely
motion and, more significantly, had served another six months
after the Appellate Division issued its illegal resentence
before the defendant was notified that the Appellate Division
would change it. At this point, the defendant has served
approximately four years of the incarcerated portion of his
sentence –- the minimum term imposed (albeit illegally) by the
Appellate Division.
We explained in Selavka that the delayed resentencing was
particularly unfair where "the defendant was given no
opportunity to withdraw his guilty plea" when he was resentenced
with an additional probationary term, id., because the revision
did not "conform to [his] legitimate sentence expectation," id.,quoting Commonwealth v. Goodwin, 458 Mass. 11, 21 (2010).
Similarly, here, the defendant argues that he withdrew his
direct appeal in February 2021 because of his expectation that
his November 2020 resentence was final.
11
The finality interest protected by our double jeopardy
principles, the Commonwealth argues, does not prohibit the
Commonwealth from altering the defendant's sentence despite this
lengthy delay because the Appellate Division has no comparable
rule 29 (a).11 Instead, because the Appellate Division's
decisions are not subject to appeal under rule 29 (a) -– because
they are "final," G. L. c. 278, § 28B -- the defendant's
interest in repose, the Commonwealth urges, is not protected
despite the substantial time that lapsed between the imposition
of the resentence and the Appellate Division's corrective
action. See Commonwealth v. Callahan, 419 Mass. 306, 308-309
(1995) ("order of the Appellate Division is final"). In other
words, the Commonwealth contends that, because the decision of
the Appellate Division is, by statute, final, the defendant has
no legitimate finality interest in its determination.
11The Commonwealth attempts to distinguish the defendant's
altered sentence from the resentencing in Selavka on the basis
that rule 29 (a) does not apply to the Appellate Division.
However, as set forth supra, prior to its amendment in 2016,
rule 29 (a) did not permit the Commonwealth to appeal an illegal
sentence, regardless of how many days had passed since the
imposition of the sentence. Nevertheless, in Selavka, 469 Mass.
at 513-514, we adopted a sixty-day period for resentencing, even
though rule 29 (a) did not technically permit the appeal brought
by the Commonwealth in that case. In other words, we applied
the sixty-day period from rule 29 (a) even though, at the time,
rule 29 (a) did not govern the appeal. There is no basis to
proceed differently in this case.
12
The Commonwealth's argument cannot be squared with our
fundamental commitment to justice as embodied in our common-law
double jeopardy jurisprudence. See Selavka, 469 Mass. at 513.
Indeed, in view of the statutory mandate that the Appellate
Division's sentences are "final," G. L. c. 278, § 28B, and not
appealable, our reasoning in Selavka applies with even greater
force to protect the defendant in this case from this "grievous
harm" to his finality interest, Selavka, supra (citation
omitted). There is no basis to treat the defendant here, who
availed himself of the Appellate Division, worse than a
defendant who did not do so.12
Mistakes happen; and when timely brought to the Appellate
Division's attention, they should be correctable.13 However, as
we explained in Selavka, 469 Mass. at 509, "even an illegal
12The defendant had the right to appeal his sentence. See
G. L. c. 278, § 28B ("A person aggrieved by a sentence which may
be reviewed may appeal to the appellate division for a review of
such sentence"). See also Commonwealth v. Knight, 392 Mass.
192, 196 n.3 (1984), quoting Commonwealth v. Whitehead, 379
Mass. 640, 644 (1980) ("For any relief from the alleged severity
of the sentences[,] recourse . . . is to the Appellate Division
of the Superior Court under G. L. c. 278, §§ 28A-28D").
13In fact, the Superior Court is authorized to amend Rule
64 of the Rules of the Superior Court (2022) to provide a short
period of time to permit the Appellate Division to correct
errors such as the one made by the Appellate Division here. See
G. L. c. 278, § 28B ("The [S]uperior [C]ourt . . . may by rule
make . . . regulations of procedures relative thereto,
consistent with law, as justice may require"). See also Gavin
v. Commonwealth, 367 Mass. 331, 333 & n.5 (1975).
13
sentence will, with the passage of time, acquire a finality that
bars further punitive changes detrimental to the defendant."
The guarantee against double jeopardy is "not simply res
judicata dressed in prison grey"; "[i]t was called forth more by
oppression than by crowded calendars." Twice in Jeopardy, 75
Yale L.J. 262, 277 (1965). The overriding concern underlying
the prohibition against double jeopardy has been "with
'oppressive' tendencies in even well-motivated prosecutions,
arising from the inherent powers, prerogatives, and resources of
the sovereign in criminal cases and the devastating and one-
sided nature of the jeopardy to which the individuals confronted
by these powers are subjected." Rosenthal, Prosecutor
Misconduct, Convictions, and Double Jeopardy: Case Studies in
an Emerging Jurisprudence, 71 Temp. L. Rev. 887, 942 (1998).
Accordingly, when sufficient time has lapsed, even an
illegal sentence becomes final, and double jeopardy principles
preclude upward adjustments thereto by the State. We concluded
in Selavka, 469 Mass. at 513-514, that the requisite time period
was sixty days. Our common law of double jeopardy affords the
defendant in this case no less protection.
3. Conclusion. We reverse the decision of the single
justice and remand the case to the county court for entry of a
judgment, pursuant to G. L. c. 211, § 3, vacating the Appellate
14
Division's May 13, 2021 sentencing order and reinstating the
Appellate Division's November 17, 2020 sentencing order.
So ordered.
CYPHER, J. (dissenting). The defendant was not punished
twice for the same offense.1
The guarantee against double jeopardy "protects against
multiple punishments for the same offense." Commonwealth v.
Selavka, 469 Mass. 502, 509 (2014), quoting Aldoupolis v.
Commonwealth, 386 Mass. 260, 271-272, cert. denied, 459 U.S. 864(1982), S.C., 390 Mass. 438 (1983). The defendant's sentence
was merely corrected to comply with the minimum sentence
required by law. After availing himself of the right to appeal
his sentence to the Appellate Division of the Superior Court, he
received, even after the revised May 2021 sentence of from five
to six years in State prison (May sentence), a sentence
significantly more favorable than his initial sentence of from
six to eight years in State prison. Although I agree with the
court that the November 2020 sentence of from four to six years
(November sentence) was illegal, I would conclude that in the
circumstances here, the Appellate Division's delay in correcting
the sentence did not implicate principles of double jeopardy. I
would also conclude that the holding of Selavka does not apply
to this case.
1 Although Clifford Martin commenced this action by filing a
petition in the county court, for convenience, I refer to him as
the defendant.
2
To understand why Selavka does not apply, one must begin by
looking at the history and procedure of the Appellate Division.
The Appellate Division is a creature of statute. I.R. Macey,
Handbook of Practice and Procedure for the Appellate Division of
the Superior Court of Massachusetts 2 (1981) (Macey). In 1942,
the Judicial Council of Massachusetts proposed that there "be
provision by which the Superior Court itself in an appellate
session should be able to review a sentence in a summary
proceeding." Eighteenth Report of the Judicial Council, Pub.
Doc. No. 144, at 28 (1942). The Judicial Council recommended
that the Appellate Division be created to correct mistakes and
disparities in sentencing without subjecting a defendant to a
lengthy and costly appellate process. Id. at 29. See Macey,
supra at 2, 38 (Appellate Division's "purpose is not to seal an
appellant's judgment by simple agreement with the sentencing
judge, but, rather, to closely scrutinize the action of another
justice and, from a variety of factors before it, arrive at a
just determination of whether such action was appropriate or was
inappropriate or arbitrary"). Enacted in 1943, G. L. c. 278,
§§ 28A-28C, were intended to permit review of whether a sentence
imposed by a trial judge was appropriate at the time it was
3
imposed.2 Macey, supra. The Appellate Division is the only
authority permitted to review a lawful sentence. Commonwealth
v. D'Amour, 428 Mass. 725, 746 (1999).
"[T]he only question . . . open before the Appellate
Division [is] the appropriateness of the sentence imposed by the
trial [or sentencing] judge." Hicks v. Commonwealth, 345 Mass.
89, 92 (1962), cert. denied, 374 U.S. 839 (1963). The Appellate
Division is "a vehicle whereby extreme harshness or leniency by
judges in sentencing could be corrected" (citation omitted).
Lena v. Commonwealth, 369 Mass. 571, 574 n.2 (1976). "It has no
authority over the judgment of conviction." Commonwealth v.
Callahan, 419 Mass. 306, 308 (1995) (Appellate Division not
appellate court within meaning of Mass. R. Crim. P. 29 [a], 378
Mass. 899 [1979]). The Appellate Division is limited in the
types of sentences that it may review: sentences to State
prison except in any case where a different sentence could not
have been imposed, and sentences "to the reformatory" for women
for terms of more than five years. G. L. c. 278, § 28A. It
also may review any other sentence which was imposed when the
sentence appealed from was imposed. G. L. c. 278, § 28B.
2 General Laws c. 278, § 28D, which since has been repealed,
discussed the salaries of various Appellate Division employees.
See St. 2007, c. 61, § 31, effective July 1, 2007.
4
The Appellate Division is comprised of three judges of the
Superior Court who are designated from time to time by the chief
justice of the Superior Court, with two judges constituting a
quorum.3 G. L. c. 278, § 28A. Gavin v. Commonwealth, 367 Mass.
331, 332 (1975). The clerk of the Superior Court for criminal
business in Suffolk County is designated as the clerk of the
Appellate Division, and the clerk or an assistant clerk shall
attend all sittings, retain all records, and record the
proceedings. G. L. c. 278, § 28A.
When a sentence is imposed which may be subject to review
by the Appellate Division, the clerk shall notify a defendant of
the right of appeal. G. L. c. 278, § 28B. A defendant has ten
days after the imposition of his or her sentence to file an
appeal to the Appellate Division; this does not stay the
execution of the sentence. Id. The judge who imposed the
sentence on review may submit a statement of his or her reasons
underlying the sentence to the Appellate Division and must do so
within seven days, if requested by the Appellate Division. Id.
"An appeal from a sentence is analogous to an appeal from any
judgment or order in that, once a party enters an appeal, the
judge issuing the order from which an appeal is taken is
3 No judge may sit on an appeal of a sentence that he or she
imposed. G. L. c. 278, § 28A.
5
divested of jurisdiction to act on motions to rehear or to
vacate." Callahan, 419 Mass. at 309.
The Appellate Division may amend a judgment by ordering a
different appropriate sentence or disposition that could have
been made at the time of the imposition of the initial sentence,
but it may not increase a sentence without giving a defendant an
opportunity to be heard.4 G. L. c. 278, § 28B. The Appellate
Division has the power to "reduce, increase, or affirm" the
sentence initially imposed. Croteau, petitioner, 353 Mass. 736,
738 (1968). Where it decides that the initial sentence should
stand, the Appellate Division may dismiss the appeal. G. L.
c. 278, § 28B.
Any time served on a sentence which was appealed shall be
applied to a substituted sentence. G. L. c. 278, § 28C. The
Appellate Division's "decision shall be final." G. L. c. 278,
§ 28B. Commonwealth v. Barros, 460 Mass. 1015, 1015 (2011).
The statute gives the Superior Court the power to establish
rules surrounding such appeals, "as justice may require." G. L.
c. 278, § 28B. See Rule 64 of the Rules of the Superior Court
(2020). The Superior Court has left this power "largely
unexercised." Gavin, 367 Mass. at 333.
4 The Appellate Division is not otherwise required to hold a
hearing. G. L. c. 278, § 28B. Here, in both November 2020 and
May 2021, the defendant was given an opportunity to be heard.
6
The constitutional right to counsel applies to proceedings
in the Appellate Division.5 Croteau, petitioner, 353 Mass. at
738. This court has held that an increase in sentence by the
Appellate Division does not constitute double jeopardy, and the
Appellate Division need not state its reasons for increasing a
sentence. Walsh v. Commonwealth, 358 Mass. 193, 197, 201 (1970)
("when a convicted defendant resorts to the statutory procedure
[of an appeal to the Appellate Division] for review of a
sentence he assumes the same risks inherent in an appeal from a
conviction" [citation omitted]).6
To better place the double jeopardy analysis in context, I
discuss Federal jurisprudence on the double jeopardy clause of
the United States Constitution before focusing on State-specific
protections against double jeopardy. The double jeopardy clause
in the Fifth Amendment to the United States Constitution
provides, "nor shall any person be subject for the same offence
Rule 64 of the Rules of the Superior Court specifies that
5
counsel representing a defendant at sentencing shall continue to
do so at the Appellate Division "unless (a) specifically excused
by the court, or (b) successor counsel enters an appearance with
the Appellate Division."
In Gavin, 367 Mass. at 343-344, the court posed the
6
question whether a rule regarding the provision of a statement
of reasons for increasing a sentence should be promulgated in
the "interests of the 'proper administration of criminal
justice,'" but indicated that, if change is to be made, the
Superior Court should be the body to effect such change
(citation omitted).
7
to be twice put in jeopardy of life or limb." The prohibition
against double jeopardy consists of three separate protections:
"It protects against a second prosecution for the same offense
after acquittal. It protects against a second prosecution for
the same offense after conviction. And it protects against
multiple punishments for the same offense." Selavka, 469 Mass.
at 509, quoting Aldoupolis, 386 Mass. at 271-272. "[T]he
primary purpose of the [d]ouble [j]eopardy [c]lause was to
protect the integrity of a final judgment." United States v.
Scott, 437 U.S. 82, 92 (1978), citing Crist v. Bretz, 437 U.S.
28, 33 (1978). "[T]here can be no doubt that the protection
against double jeopardy possesses a long history." Rudstein, A
Brief History of the Fifth Amendment Guarantee Against Double
Jeopardy, 14 Wm. & Mary Bill Rts. J. 193, 197 (2005).7 The
7 "Ancient Jewish law contains several references to
principles encompassed by double jeopardy law." Rudstein, supra
at 197. Both early Greek and Roman law contained some form of
protection against double jeopardy. Id. at 198, citing Bartkus
v. Illinois, 359 U.S. 121, 151-152 (1959) (Black, J.,
dissenting). Demosthenes, the Greek orator and pleader in law
courts, stated in 355 B.C. that "the laws forbid the same man to
be tried twice on the same issue, be it a civil action, a
scrutiny, a contested claim, or anything else of the sort."
Rudstein, supra, quoting Demosthenes, Against Leptines,
Olynthiacs, Philippics, Minor Public Speeches, Speech Against
Leptines, XX § 147, at 589 (J.H. Vince trans., Harvard Univ.
Press 1998) (1930). "The Roman law contained the maxim nemo
debet bis puniri pro uno delicto, that is '[n]o one ought to be
punished twice for the same offense'" (footnote omitted).
Rudstein, supra at 200, quoting Black's Law Dictionary 1736 (8th
ed. 2004). Canon law also contained protections against being
put in jeopardy twice for the same offense. Rudstein, supra.
8
protection against multiple punishments for the same offense
emerges from the understanding that "judges should not impose
multiple punishment for a single legislatively defined offense."
Twice in Jeopardy, 75 Yale L. J. 262, 267 (1965). See Jones v.
Thomas, 491 U.S. 376, 381 (1989), quoting United States v.
Halper, 490 U.S. 435, 450 (1989) ("in the multiple punishments
context, that interest [which the double jeopardy clause seeks
to protect] is 'limited to ensuring that the total punishment
did not exceed that authorized by the legislature'"); Albernaz
v. United States, 450 U.S. 333, 344 (1981) ("the question of
what punishments are constitutionally permissible is not
different from the question of what punishments the Legislative
Branch intended to be imposed").
Unlike the United States Constitution, the Massachusetts
Declaration of Rights does not contain a double jeopardy clause;
nonetheless, "we consider our common law to embrace the same
principles and protections." Selavka, 469 Mass. at 509 n.8.8 In
"[T]he guarantee against double jeopardy became firmly
entrenched in the common law in the form of the pleas of
autrefoits acquit (a former acquittal), autrefoits convict (a
former conviction), and pardon." Id. at 204.
8 "The first colonial enactment containing an express
guarantee against double jeopardy appeared in 1641 when the
General Court of the Massachusetts Bay Colony enacted the Body
of Liberties," which served as a model and was "the most
important . . . forerunner of the federal Bill of Rights."
Rudstein, supra at 221-222, quoting 1 B. Schwartz, The Bill of
Rights: A Documentary History 69 (1971). This guarantee
9
a sentencing context, "[i]ssues of double jeopardy . . . turn on
the question of the defendant's legitimate expectation of
finality." Commonwealth v. Ellsworth, 485 Mass. 29, 34 (2020).
See Commonwealth v. Woodward, 427 Mass. 659, 687 (1998), quoting
Jones, 491 U.S. at 394 (Scalia, J., dissenting) ("[W]hen a
sentence is increased in a second proceeding 'the application of
the double jeopardy clause . . . turns on the extent and
legitimacy of a defendant's expectation of finality in that
sentence. If a defendant has a legitimate expectation of
finality, then an increase in that sentence is prohibited'");
United States v. Fogel, 829 F.2d 77, 87 (D.C. Cir. 1987) (same).
"The ban on increased punishment may be overcome . . . in
certain limited situations in which society's interest in the
administration of justice outweighs the defendant's interest in
finality," including where the defendant's "initial sentence is
invalid." A Definition of Punishment for Implementing the
Double Jeopardy Clause's Multiple-Punishment Prohibition, 90
Yale L.J. 632, 638 (1981).
The United States Supreme Court has discussed double
jeopardy in relation to an increase in a sentence for which
service has begun. In Ex parte Lange, 85 U.S. 163, 164 (1873),
provided that "[n]o man shall be twise sentenced by Civill
Justice for one and the same Crime, offence, or Trespasse."
Hessick & Hessick, Double Jeopardy as a Limit on Punishment, 97
Cornell L. Rev. 45, 51 (2011), quoting Rudstein, supra at 222.
10
the defendant was sentenced to serve a year in prison in
addition to the payment of a $200 fine, despite the fact that
the statute only allowed punishment by imprisonment for not more
than one year or the payment of a fine. After the defendant
paid the fine, and served five days in prison, the trial court
vacated that judgment entirely and sentenced him to one year of
imprisonment. Id. at 175. This violated the constitutional
protection from being put in jeopardy twice. "If there is
anything settled in the jurisprudence of England and America, it
is that no man can be twice lawfully punished for the same
offence." Id. at 168. In this situation, the defendant was
"put to actual punishment twice for the same thing." Id. at
175. When the defendant "had fully suffered one of the
alternative punishments to which alone the law subjected him,
the power of the court to punish further was gone." Id. at 176.
In United States v. Benz, 282 U.S. 304, 307 (1931), interpreting
Lange, the Court stated in dicta that the distinction "that the
court during the same term may amend a sentence so as to
mitigate the punishment, but not so as to increase it, . . . [is
based] upon the ground that to increase the penalty is to
subject the defendant to double punishment for the same
offense."
Nonetheless, in Bozza v. United States, 330 U.S. 160, 166
(1947), the Court indicated that it had "rejected the 'doctrine
11
that a prisoner, whose guilt is established by a regular
verdict, is to escape punishment altogether because the court
committed an error in passing the sentence.'" Id., quoting In
re Bonner, 151 U.S. 242, 260 (1894). There, the sentencing
judge inadvertently omitted mandatory fines and penalties, which
he then imposed five hours after the sentence was announced.
Bozza, supra at 165. In affirming the sentence, the Court
indicated:
"The Constitution does not require that sentencing should
be a game in which a wrong move by the judge means immunity
for the prisoner. . . . In this case the court 'only set
aside what it had no authority to do, and substitute[d]
directions required by the law to be done upon the
conviction of the offender.' [Bonner, supra]. It did not
twice put petitioner in jeopardy for the same offense. The
sentence, as corrected, imposes a valid punishment for an
offense instead of an invalid punishment for that offense"
(footnote omitted).
Id. at 166-167. In a footnote, the Court explained the
difference between Bozza and Lange; in Lange, the defendant
already had completed a "lawful" punishment when he was
resentenced, contrary to the petitioner in Bozza, who was
prescribed an illegal sentence which was not yet fully served.
Id. at 167 n.2.
The opinion in United States v. DiFrancesco, 449 U.S. 117(1980), clarified Lange and Benz and discussed the Court's
double jeopardy precedent in detail. See United States v.
Henry, 680 F.2d 403, 410 (5th Cir. 1982) (mentioning
12
DiFrancesco's discussion of purpose and history of double
jeopardy clause). Generally,
"[t]he constitutional prohibition against 'double jeopardy'
was designed to protect an individual from being subjected
to the hazards of trial and possible conviction more than
once for an alleged offense. . . . The underlying idea,
one that is deeply ingrained in at least the Anglo–American
system of jurisprudence, is that the State with all its
resources and power should not be allowed to make repeated
attempts to convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense and ordeal
and compelling him to live in a continuing state of anxiety
and insecurity, as well as enhancing the possibility that
even though innocent he may be found guilty."
DiFrancesco, supra at 127-128, quoting Green v. United States,
355 U.S. 184, 187-188 (1957). Primary purposes of the clause
include preserving finality of judgments and the prohibition of
successive prosecutions on the same offense. DiFrancesco, supra
at 128. Where absolute finality is afforded to an acquittal,
"[t]he result is definitely otherwise in cases where the trial
has not ended in an acquittal," including situations such as a
mistrial occasioned by either manifest necessity or a
defendant's motion, termination of a trial at a defendant's
request prior to a jury verdict, or retrial after a defendant's
convictions are set aside for reasons other than insufficiency
of the evidence. Id. at 130-131.
"Historically, the pronouncement of sentence has never
carried the finality that attaches to an acquittal."
DiFrancesco, 449 U.S. at 133. At common law, an increase of a
13
sentence by the trial court was permissible during the same term
of court. Id. at 133-134. Where the defendant in DiFrancesco
was "charged with knowledge of the statute" allowing the
government to appeal his sentence with respect to an increase
after a dangerous special offender hearing, he "ha[d] no
expectation of finality in his sentence until the appeal is
concluded or the time to appeal has expired." Id. at 125, 136.
The defendant is no longer subject to the "risk of being
harassed and then convicted, although innocent." Id. at 136.
"The [d]ouble [j]eopardy [c]lause does not provide the defendant
with the right to know at any specific moment in time what the
exact limit of his punishment will turn out to be." Id. at 137.
The Court distinguished Lange, and the "dictum in Benz," as
confined "to Lange's specific context." Id. at 139. Henry, 680
F.2d at 410-411 (court in DiFrancesco indicated Lange "should
not be read as standing for the proposition that the trial court
may not increase a defendant's sentence if he has begun to serve
it"). DiFrancesco "stands for the proposition that the double
jeopardy clause does not provide an absolute bar to increasing a
defendant's sentence." Henry, 680 F.2d at 411. See Fogel, 829
F.2d at 87 ("the Court in DiFrancesco left undisturbed the
principle announced in Bozza that a court may permissibly
increase a sentence if necessary to comply with a statute").
14
In Massachusetts, when determining whether a defendant has
a legitimate expectation of finality in his or her sentence
based on double jeopardy principles, we consider several
different factors, including the legality of the original
sentence, the timeliness of any motion to revise or revoke,
whether a motion to stay the execution of the sentence was
filed, and whether the sentence already has been fully served.
Ellsworth, 485 Mass. at 34. See Commonwealth v. Grundman, 479
Mass. 204, 207-208 (2018); Commonwealth v. Scott, 86 Mass. App.
Ct. 812, 815 (2015). In the context of revisions made by a
sentencing judge, we have said that "[a] sentence is considered
final once the sixty-day window within which to file a motion to
revise or revoke has expired," as set out in Mass. R. Crim. P.
29, 489 Mass. 1503 (2022) (rule 29). Ellsworth, supra. See
Aldoupolis, 386 Mass. at 274 (sentence is final subject to
judge's limited power to revise and revoke within sixty days
after imposition).9
9 This sixty-day period set out in rule 29 (a) "substitutes
a fixed time period . . . for the exercise of a judge's power in
lieu of the traditional -- and more uncertain -- common law
period of 'term of court.'" Aldoupolis, 386 Mass. at 271. See
District Attorney for the N. Dist. v. Superior Court, 342 Mass.
119, 122 (1961) ("At common law the sentences could not have
been revised . . . after the end of the term or sitting");
Commonwealth v. Weymouth, 2 Allen 144, 145 (1861) ("It seems to
have been recognized as one of the earliest doctrines of the
common law, that the record of a court may be changed or amended
at any time during the same term of the court in which a
judgment is rendered"). Therefore, I would reject the
15
Because an illegal sentence "contravenes the intention of
the Legislature . . . the modification of an illegal sentence,
in itself, has not been seen as subjecting a defendant to
multiple punishments." Selavka, 469 Mass. at 510. The
corrected sentence simply "imposes a valid punishment for an
offense instead of an invalid punishment for that offense," even
where the corrected sentence is harsher. Id., quoting Bozza,
330 U.S. at 167. A sentencing judge has the flexibility to
respond if an error in the sentence "is discovered in a timely
manner." Dunbrack v. Commonwealth, 398 Mass. 502, 506 (1986).
See Bozza, 330 U.S. at 166-167; State v. Schubert, 212 N.J. 295,
309 (2012), quoting State v. Austin, 335 N.J. Super. 486, 494
(App. Div. 2000) ("An illegal sentence that has not been
completely served may be corrected at any time without impinging
upon double-jeopardy principles"); People v. Williams, 14 N.Y.3d
198, 212, cert. denied, 562 U.S 947 (2010) ("Our precedent has
long recognized that courts have the inherent authority to
correct illegal sentences").
defendant's suggestion to limit the time period for a judge to
correct an illegal sentence to the same "term of court" in which
a defendant has been sentenced. The Appellate Division was not
created by statute until 1943. Macey, supra at 2. The common-
law rule that sentences were not to be revised after the end of
the term or sitting was not established with such a judicial
body in mind.
16
A defendant's expectation of finality is diminished when
his or her sentence is illegal. Selavka, 469 Mass. at 513.
Nonetheless, where a defendant's expectation of finality in his
or her initial sentence has "'crystallized' after enough time,"
even an illegal sentence may become final for purposes of double
jeopardy. Id., quoting United States v. Lundien, 769 F.2d 981,
987 (4th Cir. 1985), cert. denied, 474 U.S. 1064 (1986).
Generally, other jurisdictions have held that an illegal
sentence can be corrected while a defendant still is serving his
or her sentence but have rejected such an upward modification
where a defendant has completed the original sentence. See
Williams, 14 N.Y.3d at 215-216 & n.2 (discussing Federal circuit
and State cases). See, e.g., United States v. Silvers, 90 F.3d
95, 101 (4th Cir. 1996) ("Although an expectation of finality
does not legitimately accrue by the mere commencement of the
sentence, once a defendant fully serves a sentence for a
particular crime, the [d]ouble [j]eopardy [c]lause's bar on
multiple punishments prevents any attempt to increase thereafter
a sentence for that crime"); United States v. Daddino, 5 F.3d
262, 265 (7th Cir. 1993) (where time for appeal passed and
defendant completed incarcerated portion of sentence and paid
all fines and restitution, those portions of sentence could not
be amended without violating legitimate expectation of
finality); United States v. Rourke, 984 F.2d 1063, 1066 (10th
17
Cir. 1992) ("defendant cannot acquire a legitimate expectation
of finality in a sentence which is illegal, because such a
sentence remains subject to modification"); United States v.
Arrellano-Rios, 799 F.2d 520, 524-525 (9th Cir. 1986) (jeopardy
attaches on completion of sentence and it may not be increased
after that point); United States v. Warner, 690 F.2d 545, 555
(6th Cir. 1982) (double jeopardy clause does not prohibit
amending sentence to add mandatory special parole term); Oksanen
v. United States, 362 F.2d 74, 80 (8th Cir. 1966) (sentencing
defendant to three years' probation beyond original probationary
sentence after completion of original probationary term violated
double jeopardy clause); Smith v. State, 334 So.3d 377, 379
(Fla. Dist. Ct. App. 2022) ("when a defendant serves the
entirety of his or her sentence, it violates the prohibition
against double jeopardy to resentence the defendant"); Allen v.
State, 853 So.2d 533, 536 (Fla. Dist. Ct. App. 2003) ("It does
not offend double jeopardy principles to resentence a defendant
to harsher terms when the original sentence was invalid,
particularly when, as in the instant case, it is the defendant
who brings his sentence into question"). Contrast Breest v.
Helgemoe, 579 F.2d 95, 99-101 (1st Cir. 1978) (court had duty to
correct statutorily invalid sentence even after petitioner began
service and did not violate double jeopardy principles in doing
so, though time for court to correct invalid sentence is subject
18
to some temporal limit to prevent violation of due process);
Grant v. State, 379 P.3d 993, 994 (Alaska Ct. App. 2016)
(illegally lenient sentence not "meaningfully imposed," thus,
upward modification to extent necessary to cure illegality not
violative of double jeopardy); Waddell v. People, 2020 CO 39,
¶ 14 ("Double [j]eopardy [c]lauses may function as a shield
against multiple punishments, [but] they may never be used as a
sword to enforce an illegal sentence"); People v. District
Court, 673 P.2d 991, 997 (Colo. 1983) (en banc) ("Granting
defendants a right to benefit from illegal sentences serves no
sound public policy"); State v. Fry, 61 Haw. 226, 228-230 (1979)
(court had duty to correct illegal sentence and impose original
prison term even after seven-year delay and after defendant was
released from prison because "[w]here the original punishment
was invalid, as here, a correction which produces a valid
sentence does not place the defendant in double jeopardy even if
that correction increases his punishment"); State v. Calmes, 632
N.W.2d 641, 649 (Minn. 2001) (correction of illegal sentence did
not violate double jeopardy because it did "not impose multiple
punishments, but simply the single punishment that was mandatory
at the time of sentencing"); State v. Yazzie, 2009 UT 14, ¶ 17,
quoting State v. Babbel, 813 P.2d 86, 88 (Utah 1991) ("district
19
court can correct the [illegal] sentence at any time, which
includes before, after, 'and even if there is no appeal'").10
In Massachusetts, the court in Selavka set out a sixty-day
time period, as specified in rule 29 (a), for the Commonwealth
to seek to correct sentencing errors under the rule. Selavka,
469 Mass. at 513-514. "Even an illegal sentence will become
final for the purposes of double jeopardy after the expiration
of that time period, and no longer will be subject to revision
or revocation within the terms of rule 29 (a)." Id. at 514.
Until Selavka, it was unclear whether the Commonwealth could
file a motion pursuant to rule 29 (a). This sixty-day time
10Other courts have concluded that resentencing a defendant
who already has been released from confinement is
unconstitutional. See DeWitt v. Ventetoulo, 6 F.3d 32, 35-36
(1st Cir. 1993), cert. denied, 511 U.S. 1032 (1994) (considering
multiyear period between suspension and reimposition of
sentence, reasonableness of defendant's reliance, his release
from prison and formation of new roots, tardiness of State in
failing to correct error, and existence of alternative parole
revocation remedy, "very rare exception to the general rule that
courts can, after sentence, revise sentences upward to correct
errors"); Lundien, 769 F.2d at 986-987 (due process may be
denied when sentence enhanced after defendant has served so much
of sentence that expectations as to finality have crystallized);
Jordan v. United States, 235 A.3d 808, 816 n.10, 818 (D.C. 2020)
(later upward revision to defendant's sentence may constitute
substantive due process violation; but declining to take
concurrence's approach that double jeopardy clause, as opposed
to due process protections, imposes limits on court's ability to
correct illegal sentence, as court "has never found a violation
of double jeopardy where a court corrects a sentence that, when
imposed, was outside its statutory authority"); Williams, 14
N.Y.3d at 217 (after release from prison and once time to appeal
has expired, legitimate expectation of finality arises and
double jeopardy prevents upward modification to sentence).
20
period, coupled with a finding that either "any part of the
disposition was illegal," rule 29 (a) (1), or "that justice may
not have been done," rule 29 (a) (2), "reasonably balances the
defendant's interest in finality against society's interest in
law enforcement." Aldoupolis, 386 Mass. at 275.
Despite his concession in his memorandum in support of his
G. L. c. 211, § 3, petition that rule 29 (a) does not apply to
the Appellate Division, the defendant now argues that rule 29
(a) should apply to sentences imposed by the Appellate
Division.11 Today, the court endorses this view. I agree with
the single justice that rule 29 (a) does not apply to the
Appellate Division; therefore, the sixty-day rule discussed in
Selavka is not conclusive on the double jeopardy issue. See,
e.g., Mass. R. Crim. P. 29 (a) (referencing "trial judge").
In Callahan, 419 Mass. at 308, the court discussed the
Appellate Division in relation to rule 29 (a). There, the
defendant argued that he filed his motion to revise his sentence
within the sixty-day time period set out in rule 29 (a) because,
although it was not filed within sixty days of the imposition of
11The defendant points to Committee for Pub. Counsel Servs.
v. Chief Justice of the Trial Court (No. 1), 484 Mass. 431, 450,
S.C., 484 Mass. 1029 (2020), to support his argument that this
court has acknowledged the limitations of the judicial branch as
a whole to revise and revoke sentences after sixty days. That
case does not help the defendant's position. There, the court
stated that a sentencing judge may review a sentence imposed
within the limits of rule 29 (a). Id. at 450-451.
21
his initial sentence, he filed it within sixty days of the
Appellate Division increasing his sentence. Id. This court
rejected that argument "because the Appellate Division is not an
appellate court within the meaning of rule 29 (a)," as it does
not have authority to review a judgment beyond the sentence
imposed. Id. See Commonwealth v. Malick, 86 Mass. App. Ct.
174, 185 (2014) (appeal to Appellate Division "functions as an
exclusive and final challenge to a sentence," and its affirmance
of sentence "precluded any separate relief by motions to revise
or revoke under" rule 29).
As previously noted, the Appellate Division was created in
response to a suggestion from the Judicial Council of
Massachusetts to allow for "the Superior Court itself" in an
appellate session to review a sentence. Eighteenth Report of
the Judicial Council, Pub. Doc. No. 144, at 28 (1942). Its
purpose is to correct "extreme harshness or leniency by judges
in sentencing" (citation omitted). Lena, 369 Mass. at 574 n.2.
Review in the Appellate Division "has to some extent the
character of an extension . . . of the trial judge's effort to
attain a just sentence." Gavin, 367 Mass. at 342. "[I]t can be
doubted that such distinctions as can be pointed to between the
functions of the trial judge and the Appellate Division are such
as to make a constitutional difference" in analyzing a sentence
imposed by the Appellate Division. Id.22
Despite the similarity between the Appellate Division and a
sentencing judge in the focus for both entities to ensure a just
sentence, the purpose of the Appellate Division is distinct from
that of an ordinary trial court judge imposing an initial
sentence in that its focus is limited to reviewing the sentence
to correct "extreme" deviations. Lena, 369 Mass. at 574 n.2.
See Gavin, 367 Mass. at 341 (statement of reasons may be written
more easily by Appellate Division revising sentence than by
trial judge imposing original sentence, because "the former
would be a more focused analysis looking to correction of
possible misjudgment embodied in the sentence reviewed rather
than to the formation of an original judgment"). See also
Callahan, 419 Mass. at 308 (Appellate Division has no authority
over judgment of conviction). The Appellate Division is the
only judicial body permitted to review a lawful sentence,
D'Amour, 428 Mass. at 746, and it has the power to reduce,
increase, or affirm the sentence imposed by the sentencing
judge, Croteau, petitioner, 353 Mass. at 738. Additionally,
although a defendant has a right to appeal his or her sentence
where it qualifies for review, G. L. c. 278, §§ 28A, 28B, the
defendant makes the choice whether to open his or her sentence
to revision by the Appellate Division, affecting his or her
legitimate expectation of finality. See Commonwealth v.
Tinsley, 487 Mass. 380, 391-392 (2021); Walsh, 358 Mass. at 197
23
(when defendant appeals sentence to Appellate Division "he
assumes the same risks inherent in an appeal from a
conviction").
It is apparent then, in my view, that the nature of
sentences altered by the Appellate Division markedly is
different from those imposed by a trial judge or a plea judge.
In accordance with the statutorily granted permission to
promulgate rules and regulations for proceedings in the
Appellate Division, the Superior Court created Rule 64 of the
Rules of the Superior Court specifically to address the
procedure in the Appellate Division. This rule makes no mention
of the sixty-day period to move for revision or revocation of a
sentence issued by the Appellate Division.12 For all of these
reasons, I do not think that rule 29 (a) applies to the
Appellate Division, and the sixty-day time restriction that the
rule imposes for revising or revoking sentences is
inapplicable.13
Because the statute entrusts "[t]he superior court" to
12
establish by rule "forms for appeals" to the Appellate Division
and "regulations of procedure relative thereto, consistent with
law, as justice may require," G. L. c. 278, § 28B, I do not
think it appropriate for the court to create its own rule
surrounding the timing of such revisions where there is a
distinction between the jeopardy surrounding sentencing
decisions of the Appellate Division and those of a sentencing
judge.
13I do not violate principles of equal protection by saying
so. See Harris v. McRae, 448 U.S. 297, 322 (1980) ("The
24
This is not to say that the Appellate Division can revise
and revoke illegal sentences it has imposed without limitation.
Although Selavka does not apply to sentence revisions by the
Appellate Division, I take from it that the diminished
expectation of finality stemming from an illegal sentence "does
not afford carte blanche to correct erroneous sentences at any
point subsequent to their initial imposition." Selavka, 469
Mass. at 513. The focus in a double jeopardy context is "the
question of the defendant's legitimate expectation of finality."
Ellsworth, 485 Mass. at 34. As discussed supra, the
modification of an illegal sentence, even where the revised
sentence is harsher, does not subject a defendant to multiple
punishments if done in a timely manner. Selavka, supra at 510-
511. In determining whether a defendant has a legitimate
expectation of finality in a sentence, a reviewing court
considers whether the defendant filed a motion for
postconviction relief putting his sentence at issue, the
illegality of the sentence, and whether the sentence has been
fully served. See Tinsley, 487 Mass. at 391-392; Ellsworth,
supra; Commonwealth v. Cumming, 466 Mass. 467, 471 (2013).
guarantee of equal protection . . . is not a source of
substantive rights or liberties, but rather a right to be free
from invidious discrimination in statutory classifications and
other governmental activity" [footnote omitted]).
25
In Selavka, 469 Mass. at 514, the defendant had served
seven months of incarceration before being released on parole.
He had completed his committed sentence and begun serving a
seven-year probationary term when the Commonwealth sought to
impose the statutorily required global positioning system (GPS)
monitoring condition, which was not imposed during his plea
colloquy or at the subsequent sentencing hearing. Id. at 503.
Additionally, the defendant in Selavka was sentenced as a result
of his guilty plea and was given no opportunity to withdraw the
plea on the addition of the GPS monitoring condition, which did
not "conform to [his] legitimate sentence expectation." Id. at
514, quoting Commonwealth v. Goodwin, 458 Mass. 11, 21 (2010).14
There, it would have been "contrary to the spirit of [Mass. R.
Crim. P. 12 (c) (2), as appearing in 442 Mass. 1511 (2004),] for
a judge to accept a plea bargain and impose the recommended
sentence, and then, after the defendant has lost the opportunity
to withdraw his plea, increase the sentence." Selavka, supra at
14The defendant here was not in a "similar" position
because he withdrew his direct appeal in February 2021 in
reliance on his illegal sentence. Ante at note 10. There is a
significant distinction. In the defendant's case, he did not
relinquish his constitutional right to have a trial by jury by
admitting to guilt and agreeing with the Commonwealth to a
particular punishment. He exercised his right to go to trial,
was convicted by a jury, and, as a result, had no control over
his sentence. These circumstances are markedly different, as
"defendants 'pleading guilty pursuant to a sentencing
[agreement] bargain more certainty about their fate'" (citation
omitted). Goodwin, 458 Mass. at 20-21.
26
515, quoting Goodwin, supra. The defendant here is in a
considerably different situation.
Here, the defendant, after being convicted by a jury,
initially was sentenced by the trial judge to from six to eight
years in State prison (for the incarcerated portion of his
sentence) on April 23, 2019. He appealed to the Appellate
Division, where he received a revised sentence (albeit an
illegal one in his favor) in November 2020 of from four to six
years in State prison. "[A]lthough '[t]he double jeopardy
proscription protects the defendant against governmental
oppression, it does not "relieve a defendant from the
consequences of his voluntary choice" to invalidate his original
punishment'" (citation omitted). Cumming, 466 Mass. at 471.15
Neither the defendant nor the Commonwealth filed a motion to
15 The court states: "The Commonwealth maintains that the
defendant's finality interest in this case is different from the
interest of the defendant in Selavka; it contends that because
the defendant here appealed his sentence to the Appellate
Division, he has no finality interest in an illegal sentence
imposed by that body." Ante at . This describes the concept
of continuing jeopardy, which characterizes the position of
every defendant who chooses to appeal his or her conviction.
See Commonwealth v. Sanchez, 485 Mass. 491, 506-507 (2020)
(protections against double jeopardy not offended where
"defendant has knowingly unsettled the finality of his or her
conviction and sentence by appealing" and "defendant is
understood to remain in continuing jeopardy . . . throughout the
appellate process"). Although I recognize that the defendant
may have assumed that his "appellate" process had ended once the
illegal November sentence had issued, his voluntary appeal of
his sentence carries significant weight in determining whether
he had a legitimate expectation of finality.
27
revise or revoke the November sentence, despite its illegality.
Contrast Cumming, supra (defendant not placed twice in jeopardy
for resentencing after defendant challenged his original
sentences in motion under Mass. R. Crim. P. 30 [a], as appearing
in 435 Mass. 1501 [2001]). In May 2021, approximately six
months after the imposition of the November sentence of from
four to six years and approximately two years after he had
received his initial sentence of from six to eight years, the
Appellate Division notified him of its intention to revise and
revoke what it now recognized to be an illegal sentence.
The May sentence imposed by the Appellate Division, of from
five to six years, was considerably more favorable to the
defendant than the original sentence that he received from the
trial judge. It did not increase the potential maximum amount
of imprisonment that the defendant may serve, but rather
increased the illegal four-year floor to a five-year floor, the
minimally required period of incarceration. See Stewart v.
Scully, 925 F.2d 58, 63-65 (2d Cir. 1991) (plaintiff had
expectation of finality where court could have reduced minimum
term to comply with statute but chose to increase maximum term
instead); Fogel, 829 F.2d at 90 ("The . . . court . . . was free
to correct the defect in the original sentence but only to the
extent necessary to bring the sentence into compliance with the
statute. Because the . . . court unnecessarily increased the
28
appellant's sentence, [it produced] a violation of the double
jeopardy clause"). The defendant still was incarcerated for
these offenses when his sentence was corrected, and he had a
significant period remaining on his term of incarceration.
Contrast Schubert, 212 N.J. at 313 (increase of sentence after
it has been completed violative of double jeopardy principles).
This situation patently is different from the facts in Selavka,
where the defendant received an additional condition after his
release from confinement that had a severe impact on his privacy
interests and to which he did not agree when tendering a plea to
the offenses with which he was charged. Selavka, 469 Mass. at
514. See Commonwealth v. Feliz, 481 Mass. 689, 704 (2019),
S.C., 486 Mass. 510 (2020) (GPS monitoring cannot be deemed
"minimally invasive" where it gathers significant information
over long period of time and causes several "practical problems
and life inconveniences").
Although the decision of the Appellate Division "shall be
final," meaning the defendant may not appeal his or her sentence
on fairness grounds to the appellate courts, G. L. c. 278,
§ 28B, and "[a] defendant's expectation of finality in his
sentence increases once he has begun to serve that sentence,"
Selavka, 469 Mass. at 514, the defendant's expectation of
finality in the illegal November sentence had not yet
29
"crystallized" for all of the above reasons.16 I would therefore
decline to invalidate the corrected, legal May sentence imposed
by the Appellate Division and to order reinstatement of the
illegal November sentence.17
Finally, I briefly address the defendant's assertion that
the May sentence was correctable, in the alternative, under
Mass. R. Crim. P. 30 (a). Although the single justice did not
16Recognition of the "shall be final" language in § 28B
must be read in light of all of the other factors characterizing
the Appellate Division, its purpose, and the defendant's
legitimate expectation of finality in this particular case,
discussed at length supra. See Barros, 460 Mass. at 1015("shall be final" in statute means that party may not appeal "as
a matter of right to the appellate courts from the Appellate
Division's decision"). I do not conclude that "because the
decision of the Appellate Division is, by statute, final, the
defendant has no legitimate finality interest in its
determination." Ante at . Instead, after closely analyzing
the nature of the Appellate Division and the factors surrounding
the illegal sentence and its subsequent revision, I conclude
that the defendant's expectation of finality in the illegal
sentence had not "crystallized" in this case.
Furthermore, despite the court's decision in Selavka, and
even if this case were not distinguishable, I am hesitant to
conclude that this court should sanction an illegal sentence.
See Commonwealth v. Montarvo, 486 Mass. 535, 542 (2020) ("We are
bound by [the] choice[s]" of Legislature in interpreting and
applying statutes).
17Although I appreciate the power that the Commonwealth and
the courts wield in criminal cases, it is important that we
consider the arguments on both sides in coming to a fair and
just conclusion. See Mele v. Fitchburg Dist. Court, 850 F.2d
817, 822 (1st Cir. 1988) ("opportunity to consider arguments on
both sides . . . is [a concept] at the root of our adversarial
system of justice"). There are legitimate interests and
arguments on both sides of most issues that reach us.
30
address this claim, the defendant preserved the issue by raising
it in his memorandum in support of his G. L. c. 211, § 3,
petition to the single justice. Contrast Lykus v. Commonwealth,
432 Mass. 160, 164 (2000) ("As the defendant did not raise this
issue before the lower court, or the single justice, it is not
properly before us on appeal").
Rule 30 (a) states:
"Any person who is imprisoned or whose liberty is
restrained pursuant to a criminal conviction may at any
time, as of right, file a written motion requesting the
trial judge to release him or her or to correct the
sentence then being served upon the ground that the
confinement or restraint was imposed in violation of the
Constitution or laws of the United States or of the
Commonwealth of Massachusetts."
The Reporters' Notes to rule 30 (a) indicate that it is
available to seek the correction of an illegal sentence, which
includes "facially illegal sentences" and "sentences premised
upon a major misunderstanding by the sentencing judge," but not
an illegally imposed sentence, "where the irregularity lies with
the procedure employed in imposing the sentence."18 Reporters'
18"'An "illegal sentence" is one that is in excess of the
punishment prescribed by the relevant statutory provision or in
some way contrary to the applicable statute,' Commonwealth v.
Layne, 21 Mass. App. Ct. 17, 19 (1985), or is 'premised on a
major misunderstanding by the sentencing judge as to the legal
bounds of his authority,' Commonwealth v. McGuinness, 421 Mass.
472, 475 (1995)." Commonwealth v. Walters, 479 Mass. 277, 280
(2018). "A sentence that contradicts the statutory provision in
question, even where those contradictions favor the defendant,
is also illegal." Id. at 281.
31
Notes to Rule 30 (a), Mass. Ann. Laws Court Rules, Rules of
Criminal Procedure, at 339 (LexisNexis 2022-2023). According to
the Reporters' Notes, an illegally imposed sentence is
correctable on a motion filed pursuant to rule 29 (a). Id.
In Commonwealth v. Hill, 79 Mass. App. Ct. 806, 808-809
(2011), the Appeals Court held that rule 30 (a) may be used to
challenge a sentence imposed by the Appellate Division. This
conclusion is supported by recent case law from this court. See
Sabree v. Commonwealth, 479 Mass. 1006, 1007 (2018) (defendant
could have raised claim regarding Appellate Division's authority
or jurisdiction to restructure and amend sentences pursuant to
rule 30 [a]); Cucinelli v. Commonwealth, 477 Mass. 1004, 1004
n.3 (2017) (to extent defendant claimed that his new sentence
ordered by Appellate Division was illegal, he could file motion
under rule 30 [a]); Jones v. Commonwealth, 461 Mass. 1005, 1005-
1006 (2012) (petitioner had other means to seek relief from
decision of Appellate Division, one being rule 30 [a] motion).
But see Callahan, 419 Mass. at 309 (once party enters appeal
from sentence to Appellate Division, "the judge issuing the
In Layne, the Appeals Court held that a motion was filed
improperly under rule 30 (a) where it did not allege an "illegal
sentence," but alleged that the sentencing judge misapprehended
that the applicable parole eligibility standards soon would be
relaxed by the Legislature; such a motion would have been filed
properly under rule 29 (a) within the relevant time constraints.
Layne, 21 Mass. App. Ct. at 18-20.
32
order from which an appeal is taken is divested of jurisdiction
to act on motions to rehear or to vacate" under rule 29 [a]).
Considering our holding in Callahan, in my view, any rule 30 (a)
motion filed by a defendant would need to be to the relevant
panel of judges who imposed the sentence in the Appellate
Division, despite the language in rule 30 (a) specifying that
the motion is to be filed with the "trial judge." The original
sentencing judge, after appeal to the Appellate Division, is
divested of jurisdiction. Although "[t]he rule assigns the
motion to the trial judge who heard the case, on the theory that
his familiarity with the case can assist in its effective
handling," where a defendant challenges his sentence as altered
by the Appellate Division, it would be in the best position to
respond to such a challenge. McCastle, petitioner, 401 Mass.
105, 107 (1987). See Averett, petitioner, 404 Mass. 28, 31
(1989) ("It is sensible to restrict an individual who has been
convicted and imprisoned to rule 30 postconviction relief before
the trial judge when that individual objects to the imposition
of confinement, but it is not free, easy, cheap, or expeditious
to impose a rule 30 hearing before a judge on a person demanding
an immediate release from prison on grounds of which the judge
is completely unaware").
In Commonwealth v. Simmons, 448 Mass. 687, 691 (2007), the
court stated that the defendant's motion to vacate his sentence
33
because of alleged violations of his constitutional right to
speedy sentencing and the sentencing judge's consideration of
impermissible factors appropriately was treated as a motion
pursuant to rule 30 (a) by the Appeals Court. In Commonwealth
v. Layne, 386 Mass. 291, 297 (1982), the defendant filed an
initial "motion to revise and revoke" under rule 30 (a). One
year later, he filed another motion to vacate illegal sentences
based on rule 30 (a), regarding whether the sentences originally
imposed were indeterminate as required by G. L. c. 279, § 24,
and whether he had a constitutionally protected right to have
his sentences reviewed by a parole board. Id. The court stated
that "these grounds could reasonably have been raised in the
original motion," and on this basis dismissed the appeal from
the order denying the motion. Id.
In Commonwealth v. Bruzzese, 437 Mass. 606, 614 (2002), the
court held that a judge's revocation of the defendant's
probation on one of his complaints, which resulted in him
serving another year beyond what was contemplated by the order
of the initial sentencing judge, "violated principles of double
jeopardy," and thus, his "motion under rule 30 (a) should have
been allowed." See Commonwealth v. Costa, 472 Mass. 139, 143
(2015) (rule 30 [a] proper mechanism for judge to correct now
unconstitutional life sentence); Commonwealth v. Parrillo, 468
Mass. 318, 320 (2014) (rule 30 [a] was "proper mechanism by
34
which to challenge constitutionality of the [community parole
supervision for life] sentencing scheme"); Cumming, 466 Mass. at
470-472 (considering defendant's double jeopardy challenges to
judge's resentencing order pursuant to rule 30 [a]).
In light of this case law, regardless of whether the
defendant's claim was that the May sentence was "illegal" or
"illegally imposed," it is my position that rule 30 (a) would
have been a proper vehicle through which to raise his double
jeopardy challenge, if he had raised it with the Appellate
Division. Cf. Aldoupolis, 386 Mass. at 269 ("The Reporters'
Notes, not officially approved or reviewed by this court, are
not binding on this court"). As I have explained supra,
however, the delay in the correction of the illegal sentence
here did not implicate principles of double jeopardy.
My determination that rule 29 (a) does not apply to the
Appellate Division is not in conflict with my determination that
rule 30 (a) does apply. Rule 30 (a), adopted in 1979, was
created to "simplify post conviction procedure, while
maintaining the full scope of relief previously available."
Reporters' Notes to Rule 30 (a), Mass. Ann. Laws Court Rules,
Rules of Criminal Procedure, at 338 (LexisNexis 2022-2023).
This rule permits a defendant to "seek release from illegal
confinement or other restraint on their liberty" and seek the
correction of an illegal sentence at any point while the
35
defendant's liberty is restricted, consolidating two formally
separate remedies, a writ of error and habeas corpus. Id. at
338-339. See Mass. R. Crim. P. 30 (a) ("person who is
imprisoned or whose liberty is restrained pursuant to a criminal
conviction may at any time, as of right, file a written
motion"); St. 1979, c. 344, § 12, effective July 1, 1979;
Commonwealth v. Lupo, 394 Mass. 644, 646 (1985). There is no
time limit in rule 30 (a), contrary to the sixty-day limitation
in rule 29 (a). In addition to a restraint of liberty such as
incarceration or probation, the rule also encompasses sentences
"contain[ing] a requirement that the defendant be subject to
community parole supervision for life . . . or register as a sex
offender." Commonwealth v. Williams, 96 Mass. App. Ct. 610, 613
(2019). The generous language in rule 30 (a) allowing a
challenge to the legality of a sentence at any time by a
defendant whose liberty is restrained suggests that it was
intended to apply more broadly than rule 29 (a) for the purposes
of a defendant's challenge to the legality of his or her
sentence, and thus that rule 30 (a) should apply to the
Appellate Division. See Reporters' Notes to Rule 29 (a), Mass.
Ann. Laws Court Rules, Rules of Criminal Procedure, at 327
(LexisNexis 2022-2023) (rule 29 [a] [1]'s authority to challenge
illegal sentence limited to Commonwealth and trial judge,
because, in part, "[q]uite apart from [r]ule 29 [a], [r]ule
36
30 [a] gives the defendant the right to challenge an illegal
sentence at any time").
In conclusion, because I do not think that rule 29 (a)
applies to the Appellate Division, and in these circumstances,
where the defendant still is serving the incarcerated portion of
his sentence and where the November sentence was illegal, the
May sentence revision did not violate the protections against
double jeopardy. It simply allowed the Appellate Division to
minimally correct the sentence to bring it within statutorily
permissible parameters while remaining considerably reduced from
the original sentence that the defendant received. Therefore, I
would affirm the decision of the single justice to uphold the
May sentence of from five to six years in State prison.