Opinion
No. 11–P–1597.
2012-08-29
COMMONWEALTH v. Michael A. BOCCHINO.
By the Court (MILLS, BROWN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Michael A. Bocchino, pro se, appeals from a Superior Court judge's denial of his postappellate motion to alter four concurrent sentences of twelve to fifteen years imposed upon four convictions of armed assault with intent to rob, G.L. c. 265, § 18( b ). For the following reasons, we affirm.
Background. The material facts are not disputed. On the evening of April 16, 2004, the defendant entered a retail store in Dennis, pointed an apparent handgun at multiple individuals in the store, and demanded money and drugs. When employees did not comply, he fled from the store. Nearby police officers pursued and arrested the defendant, still in possession of the handgun.
The grand jury indicted the defendant on four counts of armed assault with intent to rob, G.L. c. 265, § 18( b ); one count of possession of ammunition without a firearm identification card (FID), G.L. c. 269, § 10( h ); one count of use of a firearm in the course of a felony, G.L. c. 265, § 18B; one count of possession of a firearm without an FID card, subsequent offense, G.L. c. 269, §§ 10( a ) and ( d ); and one count of being an armed career felon, G.L. c. 269, § 10G( c ). A Superior Court jury convicted him of all but the subsequent offense and armed career felon charges. Shortly afterward, the defendant pleaded guilty to the charge of being an armed career criminal and to the charge of possessing a firearm without an FID card, subsequent offense. The trial judge imposed the following sentences: (1) upon the four convictions of armed assault with intent to rob, concurrent periods of twelve to fifteen years at State prison; (2) upon the conviction of possession of ammunition without an FID card, a concurrent sentence of one year to one year and one day at a house of correction; (3) upon the conviction of possession of a firearm without an FID card, subsequent offense, and use of a firearm in the commission of a felony, sentences of seven to eight years, concurrent with the anchor sentence at State prison; and (4) upon the conviction of possession of a firearm without an FID card, a concurrent sentence of one to one year and one day at a house of correction.
On appeal, this court affirmed the convictions by memorandum and order pursuant to rule 1:28, 74 Mass.App.Ct. 1113 (2009). Upon further appellate review, the Supreme Judicial Court remanded the appeal to this court for reconsideration in light of Commonwealth v. Muniz, 456 Mass. 166, 168–172 (2010); Commonwealth v. Vasquez, 456 Mass. 350, 355–360 (2010); and Commonwealth v. Charles, 456 Mass. 378, 381–384 (2010).
This court vacated the judgments of conviction of those offenses resting upon a prima facie element of the operability of a firearm because the Commonwealth had not provided a ballistics witness for cross-examination at trial upon the validity of the certificate of operability admitted into evidence. Commonwealth v. Bocchino, 78 Mass.App.Ct. 1101 (2010). At the same time, the court affirmed the order denying the defendant's motion for a new trial upon the charges of four counts of armed assault with intent to rob and the count of possession of ammunition without an FID card. See ibid. The convictions of those offenses remained in place.
The defendant then submitted a “motion to resentence” on May 9, 2011. The trial judge conducted a hearing on May 24, and denied the motion on June 2, 2011, by an order in which the judge denied any revision of the original sentences upon the surviving convictions. He explained the denial as follows. “After hearing ... and considering the goals of sentencing including punishment, deterrence, protection of the public and rehabilitation of the offender; a review of the nature and seriousness of the offenses for which the defendant was found guilty including the circumstances of the defendant's conduct surrounding the commission of said offenses, a review of the defendant's prior record and taking into account any mitigation factors including the defendant's recent submissions [at the hearing of May 24], the defendant's Motion to Resentence is respectfully DENIED.” This appeal followed.
Analysis. The defendant argues that the trial judge's denial of his motion to revise his surviving sentences amounted to punishment for conduct beyond the underlying convictions. He characterized the weapon involved in the incident as a “toy gun.”
We treat the motion to resentence as a motion to revise or revoke the sentences pursuant to Mass.R.Crim.P. 29(a), as appearing in 378 Mass. 899 (1979). The standard for allowance of such a motion is broadly discretionary: whether “justice may not have been done.” Ibid. See Commonwealth v. Gaumond, 53 Mass.App.Ct. 912 (2002) (the test is whether, at the time of its original imposition, “the sentence was just”).
The judge's affirmation of concurrent sentences of twelve to fifteen years for each of the armed assaults with intent to rob rested well within the statutory range of G.L. c. 265, § 18( b ), of five to twenty years. The judge was entitled to consider the defendant's substantial criminal history, including a prior conviction of armed robbery. The judge had no duty to reduce the sentence because the defendant had fortuitously avoided convictions upon separate offenses by reason of evolving legal doctrine.
The language of the judge's explanation for the denial of the motion for revision of the sentence showed an awareness of the governing decisional law. “A judge has considerable latitude within the framework of the applicable statute to determine the appropriate individualized sentence.... That sentence should reflect the judge's careful assessment of several goals: punishment, deterrence, protection of the public, and rehabilitation.” Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993). The defendant has not shown that the judge considered improper factors in the determination of the sentence. No error has occurred.
Order denying motion to revise sentence affirmed.