Opinion
14-P-800
02-08-2016
COMMONWEALTH v. ELVIN ANDINO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2003, the defendant pleaded guilty to nine counts of a ten-count indictment. On counts 1 and 2 he was sentenced to nine to eleven years of incarceration, followed by community parole supervision for life (CPSL). On counts 4 and 5 he received five years of probation from and after the committed sentences, the only terms being to stay away from the victim and to comply with CPSL. On counts 6 and 7 he received four to five years of committed sentences, concurrent with count 1. Pleas of guilty to counts 8, 9, and 10 were placed on file with the defendant's consent. The defendant served the committed portions of his sentences and, on August 7, 2012, he was released from incarceration.
On September 4, 2012, a Superior Court judge allowed motions by the defendant and the Commonwealth to correct the defendant's sentences to remove CPSL in light of the Supreme Judicial Court's decision in Commonwealth v. Pagan, 445 Mass. 161 (2005). The defendant was resentenced on counts 4 and 5 to twenty years of probation, and we affirmed the judge's decision in an unpublished decision issued pursuant to our rule 1:28. Commonwealth v. Andino, 87 Mass. App. Ct. 1111 (2015). On November 27, 2015, the Supreme Judicial Court denied without prejudice the defendant's request for further appellate review, and remanded the case to this court for reconsideration in light of its recent decision in Commonwealth v. Sallop, 472 Mass. 568 (2015) (Sallop). Upon reconsideration, we affirm.
Discussion. In Sallop, the Supreme Judicial Court considered "whether a newly restructured sentence imposed on a defendant after he has successfully moved to vacate community parole supervision for life (CPSL) violates our double jeopardy doctrine[,]" and "conclude[d] that, where a defendant sentenced to committed time on a conviction is resentenced to a term of probation, the new sentence violates double jeopardy where the defendant already has completed the original sentence on that conviction before resentencing." Id. at 568. "But where the defendant has yet to complete the original sentence on a conviction," the court held that "resentencing to a term of probation does not violate double jeopardy, provided that the total length of incarceration imposed on the defendant for that conviction is not increased." Id. at 568-569.
Here, as of September, 2012, the defendant had only just begun serving his five-year probationary sentences on counts 4 and 5. As he "ha[d] yet to complete the original sentence on [those] conviction[s]," the judge's resentencing order did not violate double jeopardy principles. Ibid.
Order allowing motion for resentencing affirmed.
By the Court (Cypher, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 8, 2016.