Facts: The
defendant filed a motion pursuant to Mass. R. Crim. P.30 (a) to relinquish his
conviction of armed assault in a dwelling on the ground that it was duplicative
of the conviction of aggravated burglary.
The judge denied the motion and the defendant appealed. The defendant was indicted on charges of home
invasion in violation of G. L. c.265, § 18C, assault and battery by means
of a dangerous weapon, in violation of G. L. c. 265, § 15A (b); aggravated burglary, in violation of
G.L. c. 266, § 14 and armed assault in a dwelling in violation of G. L. c. 265, §
18A. The defendant pleaded guilty to
assault and battery by means of a dangerous weapon, aggravated burglary, and
armed assault in a dwelling.
Issue #1:
Whether a defendant can challenge a conviction as duplicative after having
pleaded guilty
Yes – a
defendant can challenge a conviction and does not relinquish his entitlement to
vacate a duplicative conviction by pleading guilty to charges that on their
face are duplicative.
Issue #2:
Whether the crime of armed assault in a dwelling is a lesser included offense
of aggravated burglary which would make the defendant's conviction of both
offenses duplicative and one would have to be relinquished
No- Armed
assault in a dwelling is not a lesser included offense of aggravated burglary
because armed assault in a dwelling requires the element, the intent to commit
a felony at the time of the assault, which is not required in either armed
burglary or burglary with assault.
Moreover, neither armed burglary nor burglary with assault is a lesser
included offense of armed assault in a dwelling because both armed burglary and
burglary with assault require two elements not required in armed assault in a
dwelling. This element being the intent
to commit a felony at the time of entry into the dwelling and breaking and
entering the nighttime. Therefore
neither offense is a lesser included offense of the other because each offense
has an element that is not shared by the other.
Judgment Affirmed. (CA)
