Commonwealth v. Scott , 86 Mass. App. Ct. 812 ( 2015 )

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13-P-1232 Appeals Court
COMMONWEALTH vs. LANNY STEED SCOTT.
No. 13-P-1232.
Hampden. October 9, 2014. - January 5, 2015.
Present: Graham, Brown, & Sullivan, JJ.
Practice, Criminal, Double jeopardy, Sentence, Probation.
Indictments found and returned in the Superior Court
Department on January 17, 2007.
Following review by this court, 78 Mass. App. Ct. 1123
(2011), and the Supreme Judicial Court, 464 Mass. 355 (2013),
resentencing proceedings were heard by John S. Ferrara, J.
Michael J. Fellows for the defendant.
Dianne M. Dillon, Assistant District Attorney, for the
Commonwealth.
SULLIVAN, J. The defendant, Lanny Steed Scott, was
convicted on all charges in a five-count indictment charging
kidnapping, G. L. c. 265, § 26 (Count 1); assault by means of a
dangerous weapon, G. L. c. 265, § 15B(b) (Count 2); assault and
battery, G. L. c. 265, § 13A (Count 3); assault and battery
2
causing serious bodily injury, G. L. c. 265, § 13A(b)(i) (Count
4); and malicious destruction of property, G. L. c. 266, § 127
(Count 5). On appeal, the Supreme Judicial Court determined
there was insufficient evidence to support the conviction on
Count 4, assault and battery causing serious bodily injury, and
ordered that judgment enter for the defendant on that count.1
The case was remanded for resentencing on the remaining counts
of the indictment. See Commonwealth v. Scott, 464 Mass. 355,
364 (2013). At resentencing, the judge (who was not the trial
judge) retained the original sentences on Counts 1, 3, and 5.
On Count 2, for which the defendant had already completed his
original sentence of from two to five years in State prison
concurrent with Count 1 (see Appendix), the judge imposed a
five-year term of probation from and after the committed
sentence in Count 1. The defendant maintains that this aspect
of the resentencing violated principles of double jeopardy and
due process. See Commonwealth v. Cumming, 466 Mass. 467 (2013)
(Cumming). Compare Commonwealth v. Leggett, 82 Mass. App. Ct.
730 (2012) (Leggett). We vacate the sentences, and remand for
resentencing.
1
In a decision pursuant to our rule 1:28, this court had
affirmed the defendant's convictions. See Commonwealth v.
Scott, 78 Mass. App. Ct. 1123 (2011). The Supreme Judicial
Court then granted the defendant's application for further
appellate review, limiting its consideration to the sufficiency
of the evidence on Count 4.
3
Background. The defendant was originally sentenced on
December 20, 2007, to a period of from eight to ten years in
State prison on Count 1, the kidnapping conviction, and to a
period of two to five years in State prison on Count 4, the
since-vacated conviction, to run on and after the sentence on
Count 1.2 He was sentenced to concurrent terms of incarceration
of up to five years on the remaining counts of the indictment.
See Appendix. Resentencing occurred over five years later, on
April 30, 2013. By this time the concurrent terms of
incarceration had been fully served, including the original
sentence of from two to five years in State prison on Count 2,
assault by means of a dangerous weapon. See Appendix.
The judge reimposed the eight to ten year sentence on Count
1, the kidnapping conviction. Relying on Leggett, supra, he
resentenced the defendant to a five-year term of probation on
Count 2, to run on and after the sentence on Count 1.3 The
original aggregate sentence of a maximum fifteen years'
incarceration was converted to an aggregate sentence of up to
2
The defendant also received credit for 409 days of time
served awaiting disposition.
3
The resentencing judge, who, as we have noted, was not the
trial judge, questioned whether he was permitted to resentence
the defendant on Count 2. All other concurrent sentences were
of shorter duration and had already been served as well. The
judge requested briefing. The parties argued the applicability
of Leggett, upon which the judge relied.
4
ten years' incarceration and five years' probation. This was
accomplished, however, by vacating the original sentence (which
had already been served) on Count 2, and adding a new
probationary term on and after the original sentence on Count 1.
Double jeopardy. The double jeopardy clause, which
protects a defendant against "multiple punishments for the same
offense, . . . 'represents a constitutional policy of finality
for the defendant's benefit' in criminal proceedings."
Commonwealth v. Goodwin, 458 Mass. 11, 19 (2010), quoting from
Aldoupolis v. Commonwealth, 386 Mass. 260, 271-272, 274, cert.
denied, 459 U.S. 864 (1982). "In this Commonwealth, the subject
of double jeopardy generally has been treated as a matter of
common law rather than as a question under the Constitution of
the Commonwealth." Commonwealth v. Goodwin, supra at 20,
quoting from Aldoupolis v. Commonwealth, supra at 271 n.14.
The defendant asserts that it was impermissible to
resentence him to an additional term of probation on Count 2,
because he had already served the two to five year sentence in
full at the time of resentencing. The Commonwealth contends
that the defendant had no expectation of finality in his
sentence until all of the aggregate sentence had been served,
and that so long as the aggregate sentence on resentencing does
not exceed the original aggregate sentence, there is no
infirmity.
5
Leggett held that a defendant "does not have a reasonable
expectation of finality in any one part or element of [an
interdependent] bundle of sentences, but rather, in the entirety
of the scheme." Cumming, 466 Mass. at 471, quoting from
Leggett, 82 Mass. App. Ct. at 736-737. In Leggett, the
defendant challenged the entire bundle of sentences on the
ground of improper comments made by the judge during sentencing.
After a successful appeal from the denial of his motion for
resentencing, Leggett's original aggregate sentence of from
nineteen to twenty years was vacated, and he was resentenced to
a term of from sixteen years to sixteen years and one day and
five years of postrelease probation. 82 Mass. App. Ct. at 732-
733. Leggett contended that the new probationary terms were
illegal because they were imposed with respect to sentences
already fully served. Id. at 733-734. In a divided opinion, we
held that the "vacation of a sentencing scheme creates a clean
slate for resentencing," and rejected the notion that "a
reasonable expectation of finality vests in a fully served
component sentence of a scheme of multiple sentences." Id. at
736, 739.
A trio of cases decided since Leggett calls into question
the breadth of its holding.4 In Cumming, the Supreme Judicial
4
See Commonwealth v. Cumming, 466 Mass. 467 (2013);
Commonwealth v. Cole, 468 Mass. 294 (2014); Commonwealth v.
6
Court, citing Leggett, held that a defendant who files a motion
to correct the illegal component of an interdependent sentence
"knowingly expose[s] himself to the possibility that his entire
sentencing scheme might be restructured." Cumming, 466 Mass. at
471. The court limited that restructuring, however, to (1)
component sentences that were still outstanding at the time of
resentencing, and (2) a sentencing scheme that did not exceed
the maximum aggregate sentence of the lawful sentence originally
imposed. Id. at 472-474, citing Shabazz v. Commonwealth, 387
Mass. 291, 296 (1982). As the court later reiterated in
Commonwealth v. Cole, 468 Mass. 294, 311 (2014) (Cole), in
holding that resentencing was barred where the probationary
sentence had been served in full, resentencing "[can]not
increase the 'aggregate punishment' imposed under the original
sentence because of the defendant's right to be free from double
jeopardy." Id. at 310, quoting from Cumming, supra at 468.
Commonwealth v. Parrillo, 468 Mass. 318 (2014) (Parrillo),
decided the same day as Cole, again stated that "to accord with
double jeopardy principles, resentencing must not result in any
increase in the aggregate punishment and must be 'quantitatively
fair.'" Id. at 321, quoting from Leggett, 82 Mass. App. Ct. at
Parrillo, 468 Mass. 318 (2014). All involved the permissible
scope of resentencing after a defendant's sentence of community
parole supervision for life had been vacated as an illegal
sentence.
7
737. Parrillo also expressly stated that which was implicit in
Cumming.5 That is, where a component sentence in an
interdependent sentencing scheme has been served, the defendant
may not be resentenced in a manner that increases his or her
punishment on the component sentence.
"The judge may not resentence the defendant on the two
convictions for which the defendant has already served his
sentence, because any such resentencing would result in an
increase in punishment in violation of double jeopardy
principles. See Cumming, 466 Mass. at 473-474. The judge
in his sound discretion may resentence on the [conviction
for which the defendant is currently on probation under a
suspended sentence], provided the new sentence satisfies
the double jeopardy principles set forth in Cumming,
supra."
Parrillo, 468 Mass. at 321.
Both parties to this appeal have proceeded on the basis
that it is governed, at least in part, by Cumming. In this
case, the sole issue before the Supreme Judicial Court in the
defendant's first appeal was the sufficiency of the evidence
supporting the conviction on Count 2, assault and battery
causing serious bodily injury, and the sole relief sought was
the entry of judgment for the defendant on that count. See
Commonwealth v. Scott, 464 Mass. at 360, citing Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979); id. at 356, 364. No
challenge was made to the other convictions or component
5
The resentencing judge here did not have the benefit of
either Cole or Parrillo.
8
sentences, and the "lawful components of the defendant's
sentences were in one sense final" for purposes of double
jeopardy. Cumming, 466 Mass. at 472. Here, by arguing
successfully that there was insufficient evidence to support one
of his convictions, the defendant eliminated one component of a
sentencing scheme, and thereby exposed himself (at most) to the
risk inherent in resentencing in light of the interdependent
nature of the original sentences imposed. Compare Cumming,
Cole, and Parrillo, supra (defendants did not challenge their
convictions, but succeeded in eliminating one component of a
sentencing scheme).6
That risk is delimited by our common law of double
jeopardy, which requires that the restructured scheme be
"quantitatively fair." Cumming, supra at 472.7 The defendant
6
In these circumstances, the Supreme Judicial Court's
remand did not constitute a remand to resentence "anew" on a
clean slate as to all convictions. Contrast Commonwealth v.
White, 436 Mass. 340, 341, 344 & n.3 (2002). Unlike White,
where all the convictions were affirmed, but the sentences were
vacated due to consideration of improper factors at sentencing,
thus rendering the entire sentencing scheme a "nullity," the
defendant here succeeded in vacating one of the convictions. He
did not make a "'voluntary choice' to invalidate his original
punishment" as to all convictions. Cumming, 466 Mass. at 471,
quoting from Leggett, 82 Mass. App. Ct. at 737. Compare North
Carolina v. Pearce, 395 U.S. 711 (1969); Commonwealth v. Hyatt,
419 Mass. 815, 823 (1995).
7
In light of our disposition on State common-law grounds,
we need not address the Federal constitutional double jeopardy
and due process claims advanced by the defendant. We also need
not resolve the defendant's argument that he would be entitled
9
had a legitimate expectation of finality in his sentence once
served.8 See Parrillo, 468 Mass. at 321. Cf. Commonwealth v.
Selavka, 469 Mass. 502, 503, 514 (2014) (Commonwealth's effort
to correct illegal sentence barred by double jeopardy where
defendant had a reasonable expectation of finality in a
partially served illegal sentence).
This case is therefore controlled in all material respects
by the reasoning of Parrillo.9 Having served his entire original
sentence on Count 2, the defendant could not be resentenced on
that conviction. The Commonwealth's argument that a term of
probation does not constitute an additional punishment, see
Leggett, 82 Mass. App. Ct. at 739, is foreclosed by Cumming,
which holds that the prospect of incarceration for a violation
to credit for time served if his probation were revoked. See
Cumming, 466 Mass. at 474 n.6.
8
Compare Leggett and White, supra, where the defendants
challenged their entire sentencing scheme based on the
consideration of improper factors at sentencing. See note 6,
supra. This case does not raise, and we do not consider, the
applicability of the double jeopardy bar discussed in Cumming,
Cole, and Parrillo to cases such as Leggett, where the entire
sentencing scheme has been invalidated on appeal, but a
component sentence has been served in full.
9
The briefs in this case were filed before the Supreme
Judicial Court issued its decisions in Cole and Parillo. In
light of these precedents, we need not reach the defendant's
alternative contentions that Leggett has no application in a
case in which a conviction has been vacated due to insufficient
evidence, and that double jeopardy bars resentencing where a
defendant's conviction, for which he received an "on and after"
sentence, has been vacated for insufficient evidence.
10
of probation constitutes punishment for purposes of double
jeopardy. 466 Mass. at 473-474, citing Commonwealth v. Goodwin,
458 Mass. at 18.
Conclusion. The defendant may not be resentenced on Counts
2, 3, or 5, for which he has already served his sentences. If
the defendant has not yet completed his sentence on Count 1, the
judge, in his sound discretion, may resentence the defendant on
that count, provided the new sentence satisfies the double
jeopardy principles set forth in Cumming, Cole, and Parrillo.
The defendant's sentences are vacated, and the case is remanded
for resentencing consistent with this opinion.
So ordered.
11
Appendix.
Sentences, Commonwealth vs. Scott, No. HDCR2007-00088
Count Indictment Original Sentence
Sentence* After
December 20, Remand**
2007 April 30,
2013
001 Kidnapping, Not less than 8 No change
(2007-88-1) G. L. c. 265, yrs. nor more
§ 26 than 10 yrs. in
State prison
002 Assault by Not less than 2 5 yrs. of
(2007-88-2) means of a yrs. nor more probation, on
dangerous than 5 yrs. in and after Count
weapon, G. L. State prison, 001
c. 265, concurrent with
§ 15B(b) Count 001
003 Assault and 2.5 yrs. in No change
(2007-88-3) battery, G. L. house of
c. 265, § 13A correction,
concurrent with
Count 001
004 Assault and Not less than 2 Judgment for
(2007-88-4) battery causing yrs. nor more defendant, see
appealed to serious bodily than 5 yrs. in 464 Mass. 355
Supreme injury, G. L. State prison, (2013)
Judicial Court c. 265, on & after
§ 13A(b)(i) Count 001
005 Malicious 60 days in No change
(2007-88-5) destruction of house of
property, G. L. correction,
c. 266, § 127 concurrent with
Count 001
*Credit for 409 days awaiting original disposition.
**Credit for 2,380 days.