Commonwealth v. Jackson
Massachusetts Appeals Court
September 29, 2011
Docket No. 10-P- 116
Assault and Battery by Means of a Dangerous Weapon, Assault and Battery, Practice, Criminal,
Duplicative Convictions, Sentence
Defendant appeals from a sentence imposed by a District Court judge claiming the
convictions were duplicative and the District Court judge erred in revising and revoking his
sentence. The lower court ruling was affirmed.
Facts
On March 29, 2009, Tiffany Pimental, a loss prevention officer at Shaw’s Supermarket in
the Porter Square area of Cambridge, watched the defendant via surveillance system place items
that were not paid for into a bag then leave the store. Ms. Pimental left her office and followed
behind the defendant. The defendant then turned around, lunged at Ms. Pimental and began to
punch her high in her body and stomach. Ms. Pimental screamed that she was pregnant and
went into a defensive position crouched on the ground. The defendant then began to kick her in
her legs between five and seven times.
Duplicative Charges
The defendant was found guilty of assault and battery by means of a dangerous weapon,
in violation of G.L.c. 265 § 15A(c) (count 1) and assault and battery, in violation of G.L.c. 265 §
13A (count 4). He defendant argued, for the first time on appeal, that his conviction for assault
and battery was duplicative of his conviction for assault and battery by means of a dangerous
weapon because the former was a lesser included offense of the latter. Because the defendant
failed to preserve the issue for appeal, the court reviewed his claim “only to determine if a
substantial risk of a miscarriage occurred.” Commonwealth v. Vick, 454 Mass. 418, 430 n.13
(2009).
The court ultimately held that the lower court judge could have found that two separate
acts occurred: the first act occurred when the defendant began punching the victim and the
second act occurred when the defendant began to kick the victim with his shoe. Commonwealth
v. Lord, 55 Mass.App.Ct. 265, 272 (2002).
Sentencing
On count 1, the defendant was sentenced to a two year prison term, with one to serve
and the balance to be suspended for a period of four years. On count 4, defendant received
a concurrent sentence of a two year prison term with one year to serve and the balance to be
suspended for four years. The sentences were to start from and after an eighteen-month sentence
that the defendant was currently serving.
Later in the afternoon following the sentencing, the probation department informed the
judge that the defendant refused to sign the conditions of probation agreement pursuant to the
sentence imposed. At a hearing held ten days later on October 16, 2009, the judge explained to
the defendant that that he imposed the probation term as a part of his sentence because he “did
not want to give up on [the defendant].” The judge further explained that he chose to give
this lesser sentence in lieu of two and a half years on each count and may instead impose this
sentence in if the defendant continues to refuse to sign the conditions of probation. After giving
the defendant an opportunity to think about it during a recess, the defendant still refused to sign
the conditions of probation. He judge subsequently vacated his original sentence sua sponte and
imposed a two and one half year sentence for count 1 and eighteen months sentence for count 4,
both to run concurrently with the sentence that the defendant was already serving.
The defendant argued that the judge’s revocation of the original sentence and imposition
of a lengthier sentence was impermissible pursuant to various case law cited stating that a
judge’s sentence should reflect careful thought and consideration and could only be revoked
within a sixty day statutory period. The issue before the court on appeal was whether the
judge’s decision to revise and revoke the sentence was based on consideration of post sentencing
conduct, which is impermissible, or on information which existed at the time of the original
sentencing but was not known to the judge, which is a permissible ground for revision and
revocation.
In accordance with Mass.R.Crim.P. 29(a), the court held that the defendant’s refusal to
sign the conditions of probation was a manifestation of his attitude at the time of sentencing.
At this time of sentencing, the judge’s understanding was that the defendant would sign the
conditions of probation form. The rejection of the judge’s sentencing structure became, in effect,
cause for revision and revocation. Under this reasoning, and in accordance with a maximum
sixty day period for revisions, the judge acted within the limits of the statutes under which the
defendant was convicted. Defendant’s argument that pursuant to Commonwealth v. Christian,
26 Mass.App.Ct. 477, 482 (1999), “a refusal of a defendant to acknowledge probation conditions
constitute[s] a violation of them and grounds for revocation,” was of poor comparison to the
case at hand because the defendant in Christian was serving a sentence consisting of probation
(no incarceration component) whereas in the instant case, the defendant’s refusal to sign the
probation component of the sentence was a refusal to adhere to the entire sentencing scheme as
contemplated by the judge.
Judgment AFFIRMED; revised sentencing upheld.
Prepared by GD
