CORDY, J.
In the present appeal, we consider two double jeopardy challenges to a Superior Court judge's resentencing order following the judge's allowance of the defendant's motion
Background. On January 29, 2002, the defendant, Richard H. Cumming, was convicted on four indictments charging rape of a child, G. L. c. 265, § 23; four indictments charging indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B; and two indictments charging indecent assault and battery on a child over the age of fourteen, G. L. c. 265, § 13H. On the four indictments charging rape of a child and the four charging indecent assault and battery on a child under the age of fourteen, the judge sentenced the defendant to not less than six years and not more than ten years of incarceration. The judge also imposed CPSL. On the two indictments charging indecent assault and battery on a child over the age of fourteen, the judge sentenced the defendant to not less than four and not more than five years of incarceration. All the sentences were set to run concurrently. The defendant did not appeal.
On February 15, 2002, the defendant filed a motion to revise and revoke his sentences under Mass. R. Crim. P. 29 (a), 378 Mass. 899
On October 22, 2010, following a hearing, the judge vacated the defendant's remaining lawful sentences of incarceration and restructured the sentencing scheme. On the four indictments charging rape of a child and on two of the indictments charging indecent assault and battery on a child under the age of fourteen, the judge imposed identical sentences of not less than six years and not more than ten years of incarceration. On the two indictments charging indecent assault and battery on a child over the age of fourteen, the judge imposed sentences of not less than four and not more than five years of incarceration. All these sentences were to be served concurrently and were imposed nunc pro tunc to the original sentencing date. On the remaining two indictments charging indecent assault and battery on a child under the age of fourteen, for which the defendant had originally been sentenced to concurrent terms of from six to ten years of incarceration, the judge imposed ten years of probation to be served from and after the defendant's release from incarceration.
Discussion. The defendant makes two distinct double jeopardy challenges to his resentencing. We address each in turn.
1. Modification of sentences under Mass R. Crim. P. 30 (a). The defendant argues that at the time of the resentencing hearing, his sentences were final because he did not take a direct appeal and no valid motion
"[T]he constitutional guarantee against double jeopardy protects a defendant not only against a second prosecution for the same offense after acquittal or conviction but also against `multiple punishments for the same offense.'" Commonwealth v. Goodwin, supra at 19, quoting Aldoupolis v. Commonwealth, 386 Mass. 260, 271-272, cert. denied, 459 U.S. 864 (1982), S.C., 390 Mass. 438 (1983). In this manner, "[t]he double jeopardy clause "represents a constitutional policy of finality for the defendant's
At the hearing on the defendant's rule 30 (a) motion, the judge ruled that the defendant should be "resentenced in totality... because of the illegal sentence of the community parole supervision for life." Plainly, the judge's decision to vacate the unlawful CPSL requirement was within his authority under rule 30 (a) "to correct the sentence then being served upon the ground that [it] was imposed in violation of the Constitution or laws of the United States or of the Commonwealth of Massachusetts." For the reasons that follow, we also conclude that the judge did not err by restructuring the "final" lawful portions of the defendant's sentences under rule 30 (a), and as such, the defendant was not placed twice in jeopardy.
First, it was the defendant who filed the rule 30 (a) motion to correct his sentences. This is significant because, although "[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." Commonwealth v. Leggett, 82 Mass.App.Ct. 730, 737 (2012), quoting United States v. Scott, 437 U.S. 82, 99 (1978). By challenging his original sentences, any expectation of finality the defendant may have had was exposed to some risk. Moreover, 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." Commonwealth v. Leggett, supra at 736-737. See United States v. McClain, 133 F.3d 1191, 1193-1194 (9th Cir.), cert. denied, 524 U.S. 960 (1998), and cases cited. By filing a motion to correct his unlawful sentence under rule 30 (a), the defendant knowingly exposed himself to the possibility that his entire sentencing scheme might be restructured.
Second, it is clear that "[t]he [original sentencing] judge's belief that lifetime community parole supervision could be
For these reasons, we conclude that, although the lawful components of the defendant's sentences were in one sense final, the judge's decision to modify those interdependent sentences under rule 30 (a) did not violate the defendant's right to be free from double jeopardy.
2. Increase in the aggregate punishment. We turn next to whether the specific modification made by the judge increased the defendant's aggregate punishment. As we stated in Shabazz v. Commonwealth, supra at 296, "[w]e are aware of no authority, in the face of a double jeopardy challenge, supporting an increase in aggregate punishment by adjustment of unchallenged, final sentences upon the invalidation of another interdependent sentence." Any increase in a defendant's aggregate punishment would be "essentially unfair." Id. See Commonwealth v. Goodwin, supra at 18; Commonwealth v. Leggett, supra at 737 (restructured scheme must be quantitatively fair).
As noted, here, the judge originally sentenced the defendant to concurrent sentences of from six to ten years of incarceration
At first glance, the Commonwealth's argument that a ten-year period of probation cannot be considered harsher than community supervision for life seems reasonable. However, further examination reveals that the restructured sentencing scheme might have the effect of increasing the defendant's aggregate punishment. Under the original sentencing scheme, if the defendant violated a condition of CPSL, he would be subject to possible terms of incarceration as follows: (1) if his violation occurred while he was on parole from the underlying six- to ten-year sentences, he could be returned to prison to finish the remainder of his sentences; (2) if his violation occurred after the entire period of confinement under his original sentences had run, his first violation would subject him to a term of imprisonment in a house of correction for thirty days, his second to a term of 180 days, and his third or subsequent violation to a term of one year. See G. L. c. 127, §§ 133D (c), 149.
In contrast, under the restructured sentencing scheme, a violation of the conditions of his probation might subject the defendant to incarceration for the maximum ten-year sentence attributable to each of the underlying indecent assault and battery offenses. G. L. c. 279, § 3 (if probation is revoked, "the sentence shall be in full force and effect"). See Commonwealth v. Holmgren, 421 Mass. 224, 228 (1995). As such, the penalty for violating
To avoid this outcome, in the peculiar circumstances of this case, we conclude that the maximum period of incarceration to which the defendant may be subject for violating a condition of his probation is the period of time between the defendant's resentencing on October 22, 2010, and the ten-year maximum period of confinement remaining under the six- to ten-year sentences originally imposed on the indictments on which he was resentenced.
Conclusion. The case is remanded to the Superior Court to enter a final sentence consistent with this opinion.
So ordered.