Commonwealth v. Hill
Commonwealth v. Hill
Opinion of the Court
The defendant in this case was charged with one count of armed home invasion (with handgun) in violation of G. L. c. 265, § 18C; one count of robbery in violation of G. L. c. 265, § 19; two counts of rape in violation of G. L. c. 265, § 22(b); two counts of assault and battery in violation of G. L. c. 265, § 13A; and one count of indecent assault and battery on a person fourteen years or older in violation of G. L. c. 265, § 13H.
On the same day, the defendant filed an appeal in the Appellate Division of the Superior Court Department, requesting review of his two concurrent sentences for rape.
On May 6, 1999, the Appellate Division amended the defendant’s sentence, requiring the sentences on the rape convictions to be served consecutively to, instead of concurrently with, the armed home invasion sentence.
While the defendant’s appeal was pending before the Appellate Division, the Legislature amended the home invasion statute, G. L. c. 265, § 18C. Under that amendment, which was adopted on July 23, 1998, and went into effect on October 21, 1998, the Legislature added language to the home invasion statute that included the following:
“Whoever commits said crime while being armed with a firearm, shotgun, rifle, machine-gun, or assault weapon shall be punished by imprisonment in the state prison for 20 years. Said sentence shall not be reduced to less than ten years nor shall the person convicted be eligible for probation, parole, furlough, work release or receive any deduction from his sentence for good conduct. . . .”
St. 1998, c. 180, § 57.
On March 22, 2010, the defendant filed a motion pursuant to Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), seeking a correction of his sentence on the armed home invasion charge. In his motion, the defendant argued that the Appellate Division was bound to apply the law as it stood at the time when it considered the case. In particular, he contends that the Appellate Division should have applied what he describes as the “general rule” that a defendant may have the benefit of statutory changes mitigating the punishment for the crime he committed that are adopted while his case is pending. See Commonwealth v. Vaughn, 329 Mass. 333, 338-339 (1952). The judge denied the defendant’s motion, and he has now appealed.
Discussion. We must first face the preliminary question whether rule 30(a) may be used to challenge a sentence imposed by the Appellate Division. Rule 30(a) provides that a prisoner may “file a written motion requesting the trial judge to . . . correct the sentence then being served upon the ground that the confinement or restraint was imposed in violation of the Constitution or laws of the United States or of the Commonwealth of Massachusetts.” The defendant’s contention is that his sentence for armed home invasion, which was affirmed by the Appellate Division, was an illegal sentence. This claim falls squarely within the plain language of rule 30(a). The Commonwealth notes that sentences imposed by the Appellate Division are “final.” G. L. c. 278, § 28B, inserted
Turning to the merits, the Commonwealth argues that the Appellate Division was without authority under G. L. c. 278, § 28B, to grant the relief sought by the defendant.
Consequently, because the amendment to G. L. c. 265, § 18C, on which the defendant would rely was enacted after the trial judge sentenced the defendant, the order denying the defendant’s motion to correct sentence is affirmed.
So ordered.
The defendant does not contest the lawfulness of the Appellate Division’s ordering that his sentences for rape be served consecutively to, rather than concurrently with, the home invasion sentence. Cf. Hicks v. Commonwealth, 345 Mass. 89, 91 (1962), cert, denied, 374 U.S. 839 (1963) (holding that the Appellate Division may on the defendant’s appeal impose a longer sentence than the trial judge imposed without violating double jeopardy principles).
We express no opinion whether the defendant had available to him any alternative avenue for challenging his sentence.
The Commonwealth makes an alternative argument that the 1998 amendment was a substantive partial repeal of G. L. c. 265, § 18C, and not merely procedural, and that, therefore, it did not apply to individuals whose cases were pending when it was adopted. See G. L. c. 4, § 6. See also Nassar v. Commonwealth, 341 Mass. 584, 589-590 (1961). This position, however, is not sustainable. The text of the amendment is clear in creating a new, lesser punishment for a certain class of individuals convicted of “said crime.” It cannot be read to create a new, lesser crime or to repeal the existing statute, but only to impose a new, lesser sentence.
For example, because the statute uses the verb “made,” which ordinarily is used to modify “dispositions,” but not “sentences” — which are ordinarily described as having been “imposed” or “pronounced” — one might argue that the clause “which could have been made at the time of the imposition of the sentence or sentences under review” modifies only the phrase “any other disposition of the case,” rather than the entire clause that precedes it, including “appropriate sentence or sentences.” This reading would, however, lead to bizarre results, as there is no apparent reason for distinguishing such “other disposition[s]” the Appellate Division may impose from “sentences” it may impose.
We note that a “disposition” made by the court necessarily includes any sentence imposed, as well as any suspended sentence, term of probation, or combination of the three.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.