Commonwealth v. Johnson , 75 Mass. App. Ct. 903 ( 2009 )

The defendant was convicted of four charges, including possession of cocaine with intent to distribute (possession with intent) in violation of G. L. c. 94C, § 32A(c), and trafficking in fourteen to twenty-eight grams of cocaine in violation of G. L. c. 94C, § 32E(£>)(1).¹ The Commonwealth proved that the possession with intent conviction was for a second or subsequent offense, subjecting the defendant to the sentencing enhancement described in G. L. c. 94C, § 32A(d). See Bynum v. Commonwealth, 429 Mass. 705, 708-709 (1999). The defendant was sentenced to concurrent sentences of five years to five years and one day on the possession with intent, second offense, charge and three to five years on the trafficking charge.

The defendant subsequently brought a motion under Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), seeking dismissal of the possession with intent charge on the ground that it is duplicative of the trafficking charge. The motion judge, who was also the trial judge, viewed the motion as having some merit but concluded that the issue had been waived. However, there is no time limit on bringing a rule 30(a) motion, which may be brought “at any time, as of right.” Mass.R.Crim.P. 30(a). And, although the defendant has now served the maximum sentence on each conviction, the case is not moot because the challenged conviction has collateral consequences. See Garabedian v. Commonwealth, 336 Mass. 119, 120 (1957). See also Commonwealth v. Sherry, 386 Mass. 682, 700 (1982).

Possession with intent to distribute is a lesser included offense of trafficking and therefore duplicative of the trafficking charge. Commonwealth v. Owens, 414 Mass. 595, 608 (1993). The Commonwealth argues that due to the second offense portion of the possession with intent indictment, in this case, the possession with intent charge required proof of an element that the trafficking charge did not and that, consequently, possession with intent to distribute here is not a lesser included offense of trafficking. See Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). As the Supreme Judicial Court has made clear, however, the “second offense” portion of a possession with intent to distribute charge for a second or subsequent offense is not an element of the offense, but rather a sentencing enhancement. See Bynum v. Commonwealth, supra at 708-709 & n.4.²

The Commonwealth argues in the alternative that if the charges are duplica-tive, the possession with intent charge is the more serious one because it carries the greater sentence and the trafficking charge is the one that must be dismissed. The Supreme Judicial Court has long instructed that “[t]he appropriate remedy for the imposition of duplicative convictions is to vacate both the conviction and sentence on the lesser included offense, and to affirm the conviction on the more serious offense.” Commonwealth v. Mello, 420 Mass. 375, 398 (1995). See also Commonwealth v. Jones, 382 Mass. 387, 395 (1981) (citing, inter alia, Kuklis v. Commonwealth, 361 Mass. 302, 309 [1972], for the proposition that in duplicative conviction cases “the remedy ordered by this court has been to vacate both the conviction and sentence on the lesser-included offense, and to affirm that on the more serious offense”). The lesser included offense is the one with fewer elements, regardless of the penalty provided for by the Legislature or actually imposed by the court. See Commonwealth v. D’Amour, 428 Mass. 725, 748 (1999) (“A lesser included offense is one which is necessarily accomplished on commission of the greater crime”). This case presents an unusual circumstance because, as a result of the sentencing enhancement, the defendant was sentenced to five years to five years and one day on the lesser included offense, but to three to five years on the greater offense.

The language in Commonwealth v. Mello, supra, which has been used repeatedly by the Supreme Judicial Court in substantially identical form, appears to be mandatory. In one of the cases described in Commonwealth v. Jones, supra, as supporting this rule, Kuklis v. Commonwealth, supra at 309, the Supreme Judicial Court, though declining to articulate any blanket rule, did dismiss the duplicative convictions on two lesser included offenses even though the sentence for the greater offense that was affirmed was lighter than the sentences on each of those two lesser included offenses.³

Nonetheless, the rigid application of the Commonwealth v. Mello rule after sentencing in a case like this might well violate the apparent principle behind that rule: ensuring that the convicted defendant receive the appropriate punishment for the crime that underlies the duplicative convictions. Perhaps for this reason, in another case in which a similar claim of error was not raised until after sentencing, Commonwealth v. Shuman, 17 Mass. App. Ct. 441, 451-452 (1984), we concluded that, despite the language ordinarily requiring dismissal of the lesser included offense, the more appropriate action would be to allow the trial judge to decide which charge to dismiss. There, the Legislature had provided a greater maximum punishment for the lesser included offense and the judge had sentenced the defendant to a more severe sentence on the offense with the greater number of elements, but had suspended it. We said:

“We recognize, of course, the principle stated in Commonwealth v. Jones, 382 Mass. at 395, that when ‘consecutive sentences on duplicitous charges have been imposed, the remedy ordered . . . has been to vacate both the conviction and sentence on the lesser-included offense, and to affirm that on the more serious offense.’ It may be that, because the Legislature has permitted a maximum sentence [for the lesser included offense] greater than that allowed [for the offense with more elements], the former should be regarded as the more serious offense. Nevertheless, in Kuklis v. Commonwealth, 361 Mass. 302, 309 (1972), the Supreme Judicial Court, in a somewhat comparable situation, recognized that ‘[a]ny one of the three judgments . . . [there considered could] properly be affirmed’ (emphasis supplied). We, of course, could decide ourselves that the Jones practice should be followed. To do so, if the more serious offense is the more inclusive offense, would leave [the defendant] subject to a suspended sentence . . . plus probation, a sentence which involves no necessary incarceration. On the other hand, the sentence under [the lesser included offense] involves incarceration. We think it more appropriate to leave the matter to the trial judge, by an application of the Kuklis principle. He . . . may decide which disposition is the more appropriate, viz., that which he imposed under [the lesser included offense] or that imposed under [the more inclusive offense].”⁴

Ibid. See also Commonwealth v. Ploude, 44 Mass. App. Ct. 137, 143 (1998) (duplicative conviction case in which the judge had imposed a greater sentence on the lesser included offense and the sentences apparently had not been served; case remanded for “one of the defendant’s convictions and sentences [to be] vacated and a sentence imposed on the other conviction”).

We shall follow the same procedure here as we did in Commonwealth v. Shu-man, supra, and remand the case to the trial court. It is true that in this case both sentences have been served, but there may be consequences of one or the other conviction that might render dismissal of that underlying charge more appropriate. The parties shall be entitled to present to the judge on remand their arguments concerning the proper disposition of the case.⁵

We emphasize that nothing in our ruling prevents the Commonwealth from charging individuals in the defendant’s circumstance with the crime for which the greater punishment may be provided, even though it is the lesser included offense. The Commonwealth retains the authority to make the determination in the first instance of the offense with which a person in the defendant’s circumstance should be charged. See Cambridge v. Phillips, 415 Mass. 126, 130 (1993) (“Prosecutors have wide ranges of discretion in deciding whether to bring charges and which specific charges to bring”). If it concludes in future cases that, in light of the likelihood of proving the second offense sentence enhancement, its interests would best be served by charging a defendant in these circumstances with possession with intent to distribute, rather than trafficking, it is free to do so.

The defendant also challenges the denial of a motion to suppress evidence, arguing that, as a matter of fact, his girlfriend’s consent to search was not voluntary. The judge’s finding that the consent was voluntary, however, is not clearly erroneous, and the denial of the motion to suppress is therefore affirmed.

The case is remanded to the trial court for further proceedings consistent with this opinion. The judge “may cause an entry to be made on the docket of the case” in which the charge will not be dismissed, “ ‘Judgment Affirmed.’ The other finding of guilty will be set aside,” the judgment of conviction vacated, “and the indictment dismissed.” Commonwealth v. Shuman, 17 Mass. App. Ct. at 452.

So ordered.

1 The defendant was also convicted of possession of marijuana and a drag violation in a school zone. He filed a notice of appeal from all the convictions.

2 Indeed, in its brief in a recent case from another county that presented this same question and in which we held the convictions duplicative in an unpublished opinion under our mle 1:28, Commonwealth v. Pellot, 68 Mass. App. Ct. 1115 (2007), the Commonwealth conceded that “possession of cocaine with the intent to distribute, a second offense, is a lesser-included offense of the crime of trafficking in cocaine.”

3 Contrary to the suggestion in the concurrence, Kuklis v. Commonwealth, supra, thus did not articulate a rule that in cases of duplicative convictions, the conviction that should be affirmed is the one on which the defendant had been given the greater sentence, nor did it quote the language from Green v. United States, 274 F.2d 59, 61 (1st Cir. 1960), quoted by the concurrence. In Kuklis v. Commonwealth, supra at 304, on the conviction that was affirmed the defendant had received a suspended sentence. The sentences on the lesser included offenses would each have included one year of actual incarceration. Ibid.

4 In both Commonwealth v. Jones, 382 Mass. at 395, and Commonwealth v. Mello, 420 Mass. at 398, the Supreme Judicial Court set up an opposition between the “lesser included offense” and the “more serious offense,” and in Commonwealth v. D‘Amour, 428 Mass. at 748, subsequent to Commonwealth v. Shuman, it explicitly defined “lesser included offense” as “one which is necessarily accomplished on commission of the greater crime.” These cases foreclose the hypothesis put forward in dictum in the quoted passage from Commonwealth v. Shuman that the “more serious offense” may be the one with the highest maximum penalty.

5 Because the trial judge no longer sits on the Superior Court, the case will of necessity be assigned to another judge of the Superior Court.