Martin v. Commonwealth

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SJC-13294

CLIFFORD MARTIN vs. COMMONWEALTH.

Suffolk. December 7, 2022. - May 22, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Wendlandt, &

Georges, JJ.

Practice, Criminal, Appellate Division, Sentence, Double

jeopardy. Constitutional Law, Sentence, Double jeopardy.

Civil action commenced in the Supreme Judicial Court for

the county of Suffolk on December 10, 2021.

The case was heard by Kafker, J.

Ethan C. Stiles for the petitioner.

Julianne Campbell, Assistant District Attorney, for the

Commonwealth.

WENDLANDT, J. "Equality consists in the same treatment of

similar persons."1 This case presents the question whether a

defendant who has been serving the incarcerated portion of an

illegal sentence imposed by the Appellate Division of the

1 Aristotle, The Politics 286 (B. Jowett trans., Oxford

Univ. Press 1905) (Dover thrift ed. 2000).

2

Superior Court -- a panel comprising three Superior Court judges

-- has the same double jeopardy protections under our common law

as a defendant who has been serving the incarcerated portion of

an illegal sentence imposed by a single Superior Court judge.

The defendant, Clifford Martin,2 was resentenced by the

Appellate Division to a term of from four to six years

(resentence). The resentence was illegal because the four-year

term was less than the minimum term mandated by the Legislature

for the offense of which the defendant was convicted. See G. L.

c. 265, § 13F. Approximately six months after he was

resentenced, a clerk of the Superior Court became aware of the

error. The defendant, who was serving his term pursuant to the

resentence, was notified; and, following a hearing in the

Appellate Division, the defendant's resentence was altered, this

time to comply with the statutory mandate of a minimum term of

five years (altered sentence).

The defendant petitioned a single justice of this court

pursuant to G. L. c. 211, § 3, contending, inter alia, that the

altered sentence violated our common-law principles of double

jeopardy. Reaching the merits of the petition, the single

2 Although Clifford Martin commenced this action by filing a

petition in the county court, for convenience, we refer to him

as the defendant.

3

justice affirmed the Appellate Division's order imposing the

altered sentence.

Concluding that the resentence was illegal but that the

altered sentence violated our principles of double jeopardy as

set forth in our jurisprudence, see Commonwealth v. Selavka, 469

Mass. 502, 513-514 (2014), we now reverse the decision of the

single justice and direct that the Appellate Division's order

issuing the altered sentence be vacated and the order issuing

the resentence be reinstated.

1. Background. Following a jury trial, the defendant was

convicted of three counts of indecent assault and battery on a

person with an intellectual disability, pursuant to G. L.

c. 265, § 13F (§ 13F counts), and one count of indecent assault

and battery on a person 14 or older, pursuant to G. L. c. 265,

§ 13H (§ 13H count). The trial judge sentenced the defendant to

concurrent terms of from six to eight years in State prison on

two of the § 13F counts, and to three years of probation to be

served after his term of incarceration for the § 13H count and

the remaining § 13F count.

The defendant timely appealed his sentence to the Appellate

Division. On November 17, 2020, following a hearing, the

Appellate Division issued an order revising the defendant's

sentence, reducing the period of incarceration of from six to

eight years in prison on the two § 13F counts to from four to

4

six years in prison. In February 2021, the defendant

voluntarily withdrew his direct appeal from his conviction.

On May 5, 2021, a clerk of the Superior Court notified the

defendant that the resentence was illegal and that another

sentencing hearing would be held. The defendant objected to any

revision of the resentence on the ground that, given the passage

of more than sixty days from the date the resentence was

imposed, any alteration would violate principles of double

jeopardy.3 On May 13, 2021, following a hearing, the Appellate

Division revised the incarcerated portion of the defendant's

sentence to concurrent terms of from five to six years.

On December 10, 2021, the defendant filed a petition

pursuant to G. L. c. 211, § 3. The single justice denied the

petition on the merits, concluding that the resentence was

illegal, that the correction of the resentence after almost six

months did not violate double jeopardy principles, and that the

sixty-day time limit provided by Mass. R. Crim. P. 29 (a) (1),

as appearing in 474 Mass. 1503 (2016) (rule 29 [a]), did not

3 The defendant relied on Mass. R. Crim. P. 29 (a) (1), as

appearing in 474 Mass. 1503 (2016), which provided that "[t]he

trial judge, upon the judge's own motion, or the written motion

of the prosecutor, filed within sixty days of a sentence, may

revise or revoke such sentence if the judge determines that any

part of the disposition was illegal." The rule was subsequently

amended to replace the word "sentence" with "disposition."

Mass. R. Crim. P. 29 (a) (1), as appearing in 489 Mass. 1503

(2022).

5

apply to proceedings in the Appellate Division.4 The defendant

timely appealed to the full court.

2. Discussion. a. Standard of review. This court

"review[s] a decision of a single justice pursuant to G. L.

c. 211, § 3, for clear error of law or abuse of discretion."

Nicholas-Taylor v. Commonwealth, 490 Mass. 552, 556 (2022).

"Because the defendant raises an issue of law, [this court]

review[s] the single justice's decision de novo." Garcia v.

Commonwealth, 487 Mass. 97, 101 (2021).

b. Legality of the resentence. We readily dispose of the

defendant's contention on appeal5 that the resentence was not

4 The defendant also filed, in the trial court, a motion for

relief from unlawful restraint pursuant to Mass. R. Crim. P.

30 (a), as appearing in 435 Mass. 1501 (2001) (rule 30 [a]),

seeking relief from the altered sentence, and arguing that the

Appellate Division violated double jeopardy principles when it

revised his resentence six months after its imposition. The

trial judge denied the motion on the ground that he had been

divested of jurisdiction when the defendant appealed to the

Appellate Division. The defendant then appealed from the denial

of his rule 30 (a) motion to the Appeals Court. Proceedings in

the Appeals Court were stayed pending the resolution of the

defendant's G. L. c. 211, § 3, petition. After the single

justice denied his petition, the defendant filed a motion to

dismiss his appeal in the Appeals Court; it was dismissed with

prejudice.

5 Before the Appellate Division, the defendant acknowledged

that "[t]he sentence of [from] four to six years was illegal"

because "the statute under which [the defendant] was convicted

requires a minimum of five years imprisonment." He altered

course in his memorandum of law in support of his rule 30 (a)

motion. See note 4, supra. As did the single justice, we

assume without deciding that the argument was not waived and

proceed to address it on the merits.

6

illegal.6 Such an argument is untenable for the reasons this

court recently explained in Commonwealth v. Rossetti, 489 Mass.

589 (2022). In particular, the defendant was convicted of three

counts of indecent assault and battery on a person with an

intellectual disability, in violation of G. L. c. 265, § 13F,

which provides, in relevant part:

"Whoever commits an indecent assault and battery on a

person with an intellectual disability knowing such person

to have an intellectual disability shall for the first

offense be punished by imprisonment in the [S]tate prison

for not less than five years or not more than ten years

. . . . Except in the case of a conviction for the first

offense for violation of this section, the imposition or

execution of the sentence shall not be suspended, and no

probation or parole shall be granted until the minimum

imprisonment herein provided for the offense shall have

been served." (Emphasis added.)

Accordingly, the minimum term of a sentence of incarceration

cannot be less than five years, and the single justice correctly

determined that the resentence of from four to six years was

illegal. See Commonwealth v. Brown, 431 Mass. 772, 777 (2000)

(addressing a similarly worded statute and concluding that

6 A sentence is illegal if it:

"is in excess of the punishment prescribed by the relevant

statutory provision or in some way contrary to the

applicable statute[;] . . . is premised on a major

misunderstanding by the sentencing judge as to the legal

bounds of his authority[;] . . . [or it] contradicts the

statutory provision in question, even where those

contradictions favor the defendant" (quotations and

citations omitted).

Commonwealth v. Walters, 479 Mass. 277, 280-281 (2018).

7

"[l]anguage such as this has always been interpreted in the same

manner: the 'not less than' phrase denotes a minimum

sentence"). See also Rossetti, supra at 594 ("when the

Legislature prescribes in an offense-specific statute that a

defendant shall be incarcerated for 'not less than' a certain

number of years, such language generally defines the 'minimum

term' permitted under the statute, according to the plain

meaning of such phrase. . . . In other words, if a judge

sentences a defendant to a term of incarceration, the judge has

no discretion to sentence the defendant to less than the minimum

term provided by the Legislature");7 id. at 623 n.4 (Wendlandt,

J., dissenting) ("where a statute sets forth both a minimum

sentence and a maximum sentence and specifies that the minimum

sentence is 'not less than' a specified number of years, the

sentence cannot be for 'less than' that specified number of

years").

c. Finality in resentencing by the Appellate Division. We

turn to the novel question before us: whether the Appellate

Division's increase of a defendant's illegal resentence, six

7 Contrary to the defendant's contention, the discretion

afforded in the statute to allow a judge alternatively to

sentence a defendant to a term of probation does not allow the

judge to reduce the minimum term where, as here, the judge

imposed a sentence of incarceration. See Rossetti, 489 Mass. at

596, 604.

8

months after it imposed the resentence, violates the principles

of double jeopardy.

Relevant to the present appeal, double jeopardy principles

prohibit the State from increasing a defendant's sentence once

the defendant's reasonable expectation of finality in the

imposed sentence has "crystallized." Selavka, 469 Mass. at 513.

In Selavka, we concluded that, after sixty days, double jeopardy

principles preclude the Commonwealth from altering a defendant's

sentence so as to make it more punitive. Id. at 513-514. This

protection from governmental overreach, we held, was required by

principles of double jeopardy even where the defendant's

sentence was "illegal" insofar as the imposed sentence did not

comply with the minimum sentence prescribed by the relevant

statute for the offense of which the defendant was convicted.

Id., quoting Dunbrack v. Commonwealth, 398 Mass. 502, 506 (1986)

(correction of illegal sentence permissible only when error "is

discovered in a timely manner" [emphasis added]). Sixty days

was a reasonable period, we determined, because rule 29 (a), as

appearing in 378 Mass. 899 (1979), set forth a period of sixty

days to revise and revoke a sentence to correct any errors. See

Selavka, supra.8 Even though rule 29 (a) did not provide a

8 Limiting the period for detecting sentencing errors to

sixty days creates "an effective institutional incentive for the

State to ascertain the correctness of sentencing orders at or

near the time of punishment, thereby preventing the harm and

9

mechanism for the Commonwealth to appeal an illegal sentence, we

nonetheless construed rule 29 (a) to permit the Commonwealth to

do so, id. at 508;9 but, we explained, once that sixty-day period

had lapsed, the Commonwealth was no longer free to "shatter" the

defendant's legitimate interest in repose, id. at 513, quoting

Double Jeopardy, 91 Harv. L. Rev. 101, 102 (1977). Absent some

action during this window, the time for the appellate process

has come to an end, and the defendant has a reasonable

expectation of finality in the sentence, even an illegal one.

Cf. Commonwealth v. Sanchez, 485 Mass. 491, 507 (2020) ("the

injustice that occur when the defendant's reasonable expectation

of finality has been frustrated for the legitimate but not

indomitable sake of accuracy." Weisbord & Thomas, Judicial

Sentencing Error and the Constitution, 96 B.U. L. Rev. 1617,

1617-1618 (2016).

We have determined that a sentence may even become final

before sixty days if the defendant has completed her sentence.

Commonwealth v. Ellsworth, 485 Mass. 29, 30-31, 34-35 (2020).

9 Until it was amended in 2016 to comply with our decision

in Selavka, rule 29 (a) provided:

"The trial judge upon his own motion or the written motion

of a defendant filed within sixty days after the imposition

of a sentence, . . . may, upon such terms and conditions as

he shall order, revise or revoke such sentence if it

appears that justice may not have been done."

Mass. R. Crim. P. 29 (a), 378 Mass. 899 (1979). Pursuant to the

2016 and 2022 amendments, the trial judge now may also do so

"upon . . . the written motion of the prosecutor" (emphasis

added). Mass. R. Crim. P. 29 (a) (1), as appearing in 489 Mass.

1503 (2022); Mass. R. Crim. P. 29 (a) (1), as appearing in 474

Mass. 1503 (2016).

10

defendant is understood to remain in continuing jeopardy from

the first prosecution throughout the appellate process"). This

protection, we said, was required by our common law of double

jeopardy principles to secure a defendant's finality interest.

Selavka, supra at 513.

The Commonwealth maintains that the defendant's finality

interest in this case is different from the interest of the

defendant in Selavka; it contends that because the defendant

here appealed his sentence to the Appellate Division, he has no

finality interest in an illegal sentence imposed by that body

even though 177 days had lapsed -– a period of time almost three

times as long as the sixty-day period set forth in Selavka.10

10In Selavka, 469 Mass. at 514, the defendant had served

seven months of the incarcerated portion of his illegal sentence

and had been released on parole when the Commonwealth sought to

correct it; here, the defendant already had served over one and

one-half years before the Appellate Division acted on his timely

motion and, more significantly, had served another six months

after the Appellate Division issued its illegal resentence

before the defendant was notified that the Appellate Division

would change it. At this point, the defendant has served

approximately four years of the incarcerated portion of his

sentence –- the minimum term imposed (albeit illegally) by the

Appellate Division.

We explained in Selavka that the delayed resentencing was

particularly unfair where "the defendant was given no

opportunity to withdraw his guilty plea" when he was resentenced

with an additional probationary term, id., because the revision

did not "conform to [his] legitimate sentence expectation," id.,

quoting Commonwealth v. Goodwin, 458 Mass. 11, 21 (2010).

Similarly, here, the defendant argues that he withdrew his

direct appeal in February 2021 because of his expectation that

his November 2020 resentence was final.

11

The finality interest protected by our double jeopardy

principles, the Commonwealth argues, does not prohibit the

Commonwealth from altering the defendant's sentence despite this

lengthy delay because the Appellate Division has no comparable

rule 29 (a).11 Instead, because the Appellate Division's

decisions are not subject to appeal under rule 29 (a) -– because

they are "final," G. L. c. 278, § 28B -- the defendant's

interest in repose, the Commonwealth urges, is not protected

despite the substantial time that lapsed between the imposition

of the resentence and the Appellate Division's corrective

action. See Commonwealth v. Callahan, 419 Mass. 306, 308-309

(1995) ("order of the Appellate Division is final"). In other

words, the Commonwealth contends that, because the decision of

the Appellate Division is, by statute, final, the defendant has

no legitimate finality interest in its determination.

11The Commonwealth attempts to distinguish the defendant's

altered sentence from the resentencing in Selavka on the basis

that rule 29 (a) does not apply to the Appellate Division.

However, as set forth supra, prior to its amendment in 2016,

rule 29 (a) did not permit the Commonwealth to appeal an illegal

sentence, regardless of how many days had passed since the

imposition of the sentence. Nevertheless, in Selavka, 469 Mass.

at 513-514, we adopted a sixty-day period for resentencing, even

though rule 29 (a) did not technically permit the appeal brought

by the Commonwealth in that case. In other words, we applied

the sixty-day period from rule 29 (a) even though, at the time,

rule 29 (a) did not govern the appeal. There is no basis to

proceed differently in this case.

12

The Commonwealth's argument cannot be squared with our

fundamental commitment to justice as embodied in our common-law

double jeopardy jurisprudence. See Selavka, 469 Mass. at 513.

Indeed, in view of the statutory mandate that the Appellate

Division's sentences are "final," G. L. c. 278, § 28B, and not

appealable, our reasoning in Selavka applies with even greater

force to protect the defendant in this case from this "grievous

harm" to his finality interest, Selavka, supra (citation

omitted). There is no basis to treat the defendant here, who

availed himself of the Appellate Division, worse than a

defendant who did not do so.12

Mistakes happen; and when timely brought to the Appellate

Division's attention, they should be correctable.13 However, as

we explained in Selavka, 469 Mass. at 509, "even an illegal

12The defendant had the right to appeal his sentence. See

G. L. c. 278, § 28B ("A person aggrieved by a sentence which may

be reviewed may appeal to the appellate division for a review of

such sentence"). See also Commonwealth v. Knight, 392 Mass.

192, 196 n.3 (1984), quoting Commonwealth v. Whitehead, 379

Mass. 640, 644 (1980) ("For any relief from the alleged severity

of the sentences[,] recourse . . . is to the Appellate Division

of the Superior Court under G. L. c. 278, §§ 28A-28D").

13In fact, the Superior Court is authorized to amend Rule

64 of the Rules of the Superior Court (2022) to provide a short

period of time to permit the Appellate Division to correct

errors such as the one made by the Appellate Division here. See

G. L. c. 278, § 28B ("The [S]uperior [C]ourt . . . may by rule

make . . . regulations of procedures relative thereto,

consistent with law, as justice may require"). See also Gavin

v. Commonwealth, 367 Mass. 331, 333 & n.5 (1975).

13

sentence will, with the passage of time, acquire a finality that

bars further punitive changes detrimental to the defendant."

The guarantee against double jeopardy is "not simply res

judicata dressed in prison grey"; "[i]t was called forth more by

oppression than by crowded calendars." Twice in Jeopardy, 75

Yale L.J. 262, 277 (1965). The overriding concern underlying

the prohibition against double jeopardy has been "with

'oppressive' tendencies in even well-motivated prosecutions,

arising from the inherent powers, prerogatives, and resources of

the sovereign in criminal cases and the devastating and one-

sided nature of the jeopardy to which the individuals confronted

by these powers are subjected." Rosenthal, Prosecutor

Misconduct, Convictions, and Double Jeopardy: Case Studies in

an Emerging Jurisprudence, 71 Temp. L. Rev. 887, 942 (1998).

Accordingly, when sufficient time has lapsed, even an

illegal sentence becomes final, and double jeopardy principles

preclude upward adjustments thereto by the State. We concluded

in Selavka, 469 Mass. at 513-514, that the requisite time period

was sixty days. Our common law of double jeopardy affords the

defendant in this case no less protection.

3. Conclusion. We reverse the decision of the single

justice and remand the case to the county court for entry of a

judgment, pursuant to G. L. c. 211, § 3, vacating the Appellate

14

Division's May 13, 2021 sentencing order and reinstating the

Appellate Division's November 17, 2020 sentencing order.

So ordered.

CYPHER, J. (dissenting). The defendant was not punished

twice for the same offense.1

The guarantee against double jeopardy "protects against

multiple punishments for the same offense." Commonwealth v.

Selavka, 469 Mass. 502, 509 (2014), quoting Aldoupolis v.

Commonwealth, 386 Mass. 260, 271-272, cert. denied, 459 U.S. 864

(1982), S.C., 390 Mass. 438 (1983). The defendant's sentence

was merely corrected to comply with the minimum sentence

required by law. After availing himself of the right to appeal

his sentence to the Appellate Division of the Superior Court, he

received, even after the revised May 2021 sentence of from five

to six years in State prison (May sentence), a sentence

significantly more favorable than his initial sentence of from

six to eight years in State prison. Although I agree with the

court that the November 2020 sentence of from four to six years

(November sentence) was illegal, I would conclude that in the

circumstances here, the Appellate Division's delay in correcting

the sentence did not implicate principles of double jeopardy. I

would also conclude that the holding of Selavka does not apply

to this case.

1 Although Clifford Martin commenced this action by filing a

petition in the county court, for convenience, I refer to him as

the defendant.

2

To understand why Selavka does not apply, one must begin by

looking at the history and procedure of the Appellate Division.

The Appellate Division is a creature of statute. I.R. Macey,

Handbook of Practice and Procedure for the Appellate Division of

the Superior Court of Massachusetts 2 (1981) (Macey). In 1942,

the Judicial Council of Massachusetts proposed that there "be

provision by which the Superior Court itself in an appellate

session should be able to review a sentence in a summary

proceeding." Eighteenth Report of the Judicial Council, Pub.

Doc. No. 144, at 28 (1942). The Judicial Council recommended

that the Appellate Division be created to correct mistakes and

disparities in sentencing without subjecting a defendant to a

lengthy and costly appellate process. Id. at 29. See Macey,

supra at 2, 38 (Appellate Division's "purpose is not to seal an

appellant's judgment by simple agreement with the sentencing

judge, but, rather, to closely scrutinize the action of another

justice and, from a variety of factors before it, arrive at a

just determination of whether such action was appropriate or was

inappropriate or arbitrary"). Enacted in 1943, G. L. c. 278,

§§ 28A-28C, were intended to permit review of whether a sentence

imposed by a trial judge was appropriate at the time it was

3

imposed.2 Macey, supra. The Appellate Division is the only

authority permitted to review a lawful sentence. Commonwealth

v. D'Amour, 428 Mass. 725, 746 (1999).

"[T]he only question . . . open before the Appellate

Division [is] the appropriateness of the sentence imposed by the

trial [or sentencing] judge." Hicks v. Commonwealth, 345 Mass.

89, 92 (1962), cert. denied, 374 U.S. 839 (1963). The Appellate

Division is "a vehicle whereby extreme harshness or leniency by

judges in sentencing could be corrected" (citation omitted).

Lena v. Commonwealth, 369 Mass. 571, 574 n.2 (1976). "It has no

authority over the judgment of conviction." Commonwealth v.

Callahan, 419 Mass. 306, 308 (1995) (Appellate Division not

appellate court within meaning of Mass. R. Crim. P. 29 [a], 378

Mass. 899 [1979]). The Appellate Division is limited in the

types of sentences that it may review: sentences to State

prison except in any case where a different sentence could not

have been imposed, and sentences "to the reformatory" for women

for terms of more than five years. G. L. c. 278, § 28A. It

also may review any other sentence which was imposed when the

sentence appealed from was imposed. G. L. c. 278, § 28B.

2 General Laws c. 278, § 28D, which since has been repealed,

discussed the salaries of various Appellate Division employees.

See St. 2007, c. 61, § 31, effective July 1, 2007.

4

The Appellate Division is comprised of three judges of the

Superior Court who are designated from time to time by the chief

justice of the Superior Court, with two judges constituting a

quorum.3 G. L. c. 278, § 28A. Gavin v. Commonwealth, 367 Mass.

331, 332 (1975). The clerk of the Superior Court for criminal

business in Suffolk County is designated as the clerk of the

Appellate Division, and the clerk or an assistant clerk shall

attend all sittings, retain all records, and record the

proceedings. G. L. c. 278, § 28A.

When a sentence is imposed which may be subject to review

by the Appellate Division, the clerk shall notify a defendant of

the right of appeal. G. L. c. 278, § 28B. A defendant has ten

days after the imposition of his or her sentence to file an

appeal to the Appellate Division; this does not stay the

execution of the sentence. Id. The judge who imposed the

sentence on review may submit a statement of his or her reasons

underlying the sentence to the Appellate Division and must do so

within seven days, if requested by the Appellate Division. Id.

"An appeal from a sentence is analogous to an appeal from any

judgment or order in that, once a party enters an appeal, the

judge issuing the order from which an appeal is taken is

3 No judge may sit on an appeal of a sentence that he or she

imposed. G. L. c. 278, § 28A.

5

divested of jurisdiction to act on motions to rehear or to

vacate." Callahan, 419 Mass. at 309.

The Appellate Division may amend a judgment by ordering a

different appropriate sentence or disposition that could have

been made at the time of the imposition of the initial sentence,

but it may not increase a sentence without giving a defendant an

opportunity to be heard.4 G. L. c. 278, § 28B. The Appellate

Division has the power to "reduce, increase, or affirm" the

sentence initially imposed. Croteau, petitioner, 353 Mass. 736,

738 (1968). Where it decides that the initial sentence should

stand, the Appellate Division may dismiss the appeal. G. L.

c. 278, § 28B.

Any time served on a sentence which was appealed shall be

applied to a substituted sentence. G. L. c. 278, § 28C. The

Appellate Division's "decision shall be final." G. L. c. 278,

§ 28B. Commonwealth v. Barros, 460 Mass. 1015, 1015 (2011).

The statute gives the Superior Court the power to establish

rules surrounding such appeals, "as justice may require." G. L.

c. 278, § 28B. See Rule 64 of the Rules of the Superior Court

(2020). The Superior Court has left this power "largely

unexercised." Gavin, 367 Mass. at 333.

4 The Appellate Division is not otherwise required to hold a

hearing. G. L. c. 278, § 28B. Here, in both November 2020 and

May 2021, the defendant was given an opportunity to be heard.

6

The constitutional right to counsel applies to proceedings

in the Appellate Division.5 Croteau, petitioner, 353 Mass. at

738. This court has held that an increase in sentence by the

Appellate Division does not constitute double jeopardy, and the

Appellate Division need not state its reasons for increasing a

sentence. Walsh v. Commonwealth, 358 Mass. 193, 197, 201 (1970)

("when a convicted defendant resorts to the statutory procedure

[of an appeal to the Appellate Division] for review of a

sentence he assumes the same risks inherent in an appeal from a

conviction" [citation omitted]).6

To better place the double jeopardy analysis in context, I

discuss Federal jurisprudence on the double jeopardy clause of

the United States Constitution before focusing on State-specific

protections against double jeopardy. The double jeopardy clause

in the Fifth Amendment to the United States Constitution

provides, "nor shall any person be subject for the same offence

Rule 64 of the Rules of the Superior Court specifies that

5

counsel representing a defendant at sentencing shall continue to

do so at the Appellate Division "unless (a) specifically excused

by the court, or (b) successor counsel enters an appearance with

the Appellate Division."

In Gavin, 367 Mass. at 343-344, the court posed the

6

question whether a rule regarding the provision of a statement

of reasons for increasing a sentence should be promulgated in

the "interests of the 'proper administration of criminal

justice,'" but indicated that, if change is to be made, the

Superior Court should be the body to effect such change

(citation omitted).

7

to be twice put in jeopardy of life or limb." The prohibition

against double jeopardy consists of three separate protections:

"It protects against a second prosecution for the same offense

after acquittal. It protects against a second prosecution for

the same offense after conviction. And it protects against

multiple punishments for the same offense." Selavka, 469 Mass.

at 509, quoting Aldoupolis, 386 Mass. at 271-272. "[T]he

primary purpose of the [d]ouble [j]eopardy [c]lause was to

protect the integrity of a final judgment." United States v.

Scott, 437 U.S. 82, 92 (1978), citing Crist v. Bretz, 437 U.S.

28, 33 (1978). "[T]here can be no doubt that the protection

against double jeopardy possesses a long history." Rudstein, A

Brief History of the Fifth Amendment Guarantee Against Double

Jeopardy, 14 Wm. & Mary Bill Rts. J. 193, 197 (2005).7 The

7 "Ancient Jewish law contains several references to

principles encompassed by double jeopardy law." Rudstein, supra

at 197. Both early Greek and Roman law contained some form of

protection against double jeopardy. Id. at 198, citing Bartkus

v. Illinois, 359 U.S. 121, 151-152 (1959) (Black, J.,

dissenting). Demosthenes, the Greek orator and pleader in law

courts, stated in 355 B.C. that "the laws forbid the same man to

be tried twice on the same issue, be it a civil action, a

scrutiny, a contested claim, or anything else of the sort."

Rudstein, supra, quoting Demosthenes, Against Leptines,

Olynthiacs, Philippics, Minor Public Speeches, Speech Against

Leptines, XX § 147, at 589 (J.H. Vince trans., Harvard Univ.

Press 1998) (1930). "The Roman law contained the maxim nemo

debet bis puniri pro uno delicto, that is '[n]o one ought to be

punished twice for the same offense'" (footnote omitted).

Rudstein, supra at 200, quoting Black's Law Dictionary 1736 (8th

ed. 2004). Canon law also contained protections against being

put in jeopardy twice for the same offense. Rudstein, supra.

8

protection against multiple punishments for the same offense

emerges from the understanding that "judges should not impose

multiple punishment for a single legislatively defined offense."

Twice in Jeopardy, 75 Yale L. J. 262, 267 (1965). See Jones v.

Thomas, 491 U.S. 376, 381 (1989), quoting United States v.

Halper, 490 U.S. 435, 450 (1989) ("in the multiple punishments

context, that interest [which the double jeopardy clause seeks

to protect] is 'limited to ensuring that the total punishment

did not exceed that authorized by the legislature'"); Albernaz

v. United States, 450 U.S. 333, 344 (1981) ("the question of

what punishments are constitutionally permissible is not

different from the question of what punishments the Legislative

Branch intended to be imposed").

Unlike the United States Constitution, the Massachusetts

Declaration of Rights does not contain a double jeopardy clause;

nonetheless, "we consider our common law to embrace the same

principles and protections." Selavka, 469 Mass. at 509 n.8.8 In

"[T]he guarantee against double jeopardy became firmly

entrenched in the common law in the form of the pleas of

autrefoits acquit (a former acquittal), autrefoits convict (a

former conviction), and pardon." Id. at 204.

8 "The first colonial enactment containing an express

guarantee against double jeopardy appeared in 1641 when the

General Court of the Massachusetts Bay Colony enacted the Body

of Liberties," which served as a model and was "the most

important . . . forerunner of the federal Bill of Rights."

Rudstein, supra at 221-222, quoting 1 B. Schwartz, The Bill of

Rights: A Documentary History 69 (1971). This guarantee

9

a sentencing context, "[i]ssues of double jeopardy . . . turn on

the question of the defendant's legitimate expectation of

finality." Commonwealth v. Ellsworth, 485 Mass. 29, 34 (2020).

See Commonwealth v. Woodward, 427 Mass. 659, 687 (1998), quoting

Jones, 491 U.S. at 394 (Scalia, J., dissenting) ("[W]hen a

sentence is increased in a second proceeding 'the application of

the double jeopardy clause . . . turns on the extent and

legitimacy of a defendant's expectation of finality in that

sentence. If a defendant has a legitimate expectation of

finality, then an increase in that sentence is prohibited'");

United States v. Fogel, 829 F.2d 77, 87 (D.C. Cir. 1987) (same).

"The ban on increased punishment may be overcome . . . in

certain limited situations in which society's interest in the

administration of justice outweighs the defendant's interest in

finality," including where the defendant's "initial sentence is

invalid." A Definition of Punishment for Implementing the

Double Jeopardy Clause's Multiple-Punishment Prohibition, 90

Yale L.J. 632, 638 (1981).

The United States Supreme Court has discussed double

jeopardy in relation to an increase in a sentence for which

service has begun. In Ex parte Lange, 85 U.S. 163, 164 (1873),

provided that "[n]o man shall be twise sentenced by Civill

Justice for one and the same Crime, offence, or Trespasse."

Hessick & Hessick, Double Jeopardy as a Limit on Punishment, 97

Cornell L. Rev. 45, 51 (2011), quoting Rudstein, supra at 222.

10

the defendant was sentenced to serve a year in prison in

addition to the payment of a $200 fine, despite the fact that

the statute only allowed punishment by imprisonment for not more

than one year or the payment of a fine. After the defendant

paid the fine, and served five days in prison, the trial court

vacated that judgment entirely and sentenced him to one year of

imprisonment. Id. at 175. This violated the constitutional

protection from being put in jeopardy twice. "If there is

anything settled in the jurisprudence of England and America, it

is that no man can be twice lawfully punished for the same

offence." Id. at 168. In this situation, the defendant was

"put to actual punishment twice for the same thing." Id. at

175. When the defendant "had fully suffered one of the

alternative punishments to which alone the law subjected him,

the power of the court to punish further was gone." Id. at 176.

In United States v. Benz, 282 U.S. 304, 307 (1931), interpreting

Lange, the Court stated in dicta that the distinction "that the

court during the same term may amend a sentence so as to

mitigate the punishment, but not so as to increase it, . . . [is

based] upon the ground that to increase the penalty is to

subject the defendant to double punishment for the same

offense."

Nonetheless, in Bozza v. United States, 330 U.S. 160, 166

(1947), the Court indicated that it had "rejected the 'doctrine

11

that a prisoner, whose guilt is established by a regular

verdict, is to escape punishment altogether because the court

committed an error in passing the sentence.'" Id., quoting In

re Bonner, 151 U.S. 242, 260 (1894). There, the sentencing

judge inadvertently omitted mandatory fines and penalties, which

he then imposed five hours after the sentence was announced.

Bozza, supra at 165. In affirming the sentence, the Court

indicated:

"The Constitution does not require that sentencing should

be a game in which a wrong move by the judge means immunity

for the prisoner. . . . In this case the court 'only set

aside what it had no authority to do, and substitute[d]

directions required by the law to be done upon the

conviction of the offender.' [Bonner, supra]. It did not

twice put petitioner in jeopardy for the same offense. The

sentence, as corrected, imposes a valid punishment for an

offense instead of an invalid punishment for that offense"

(footnote omitted).

Id. at 166-167. In a footnote, the Court explained the

difference between Bozza and Lange; in Lange, the defendant

already had completed a "lawful" punishment when he was

resentenced, contrary to the petitioner in Bozza, who was

prescribed an illegal sentence which was not yet fully served.

Id. at 167 n.2.

The opinion in United States v. DiFrancesco, 449 U.S. 117

(1980), clarified Lange and Benz and discussed the Court's

double jeopardy precedent in detail. See United States v.

Henry, 680 F.2d 403, 410 (5th Cir. 1982) (mentioning

12

DiFrancesco's discussion of purpose and history of double

jeopardy clause). Generally,

"[t]he constitutional prohibition against 'double jeopardy'

was designed to protect an individual from being subjected

to the hazards of trial and possible conviction more than

once for an alleged offense. . . . The underlying idea,

one that is deeply ingrained in at least the Anglo–American

system of jurisprudence, is that the State with all its

resources and power should not be allowed to make repeated

attempts to convict an individual for an alleged offense,

thereby subjecting him to embarrassment, expense and ordeal

and compelling him to live in a continuing state of anxiety

and insecurity, as well as enhancing the possibility that

even though innocent he may be found guilty."

DiFrancesco, supra at 127-128, quoting Green v. United States,

355 U.S. 184, 187-188 (1957). Primary purposes of the clause

include preserving finality of judgments and the prohibition of

successive prosecutions on the same offense. DiFrancesco, supra

at 128. Where absolute finality is afforded to an acquittal,

"[t]he result is definitely otherwise in cases where the trial

has not ended in an acquittal," including situations such as a

mistrial occasioned by either manifest necessity or a

defendant's motion, termination of a trial at a defendant's

request prior to a jury verdict, or retrial after a defendant's

convictions are set aside for reasons other than insufficiency

of the evidence. Id. at 130-131.

"Historically, the pronouncement of sentence has never

carried the finality that attaches to an acquittal."

DiFrancesco, 449 U.S. at 133. At common law, an increase of a

13

sentence by the trial court was permissible during the same term

of court. Id. at 133-134. Where the defendant in DiFrancesco

was "charged with knowledge of the statute" allowing the

government to appeal his sentence with respect to an increase

after a dangerous special offender hearing, he "ha[d] no

expectation of finality in his sentence until the appeal is

concluded or the time to appeal has expired." Id. at 125, 136.

The defendant is no longer subject to the "risk of being

harassed and then convicted, although innocent." Id. at 136.

"The [d]ouble [j]eopardy [c]lause does not provide the defendant

with the right to know at any specific moment in time what the

exact limit of his punishment will turn out to be." Id. at 137.

The Court distinguished Lange, and the "dictum in Benz," as

confined "to Lange's specific context." Id. at 139. Henry, 680

F.2d at 410-411 (court in DiFrancesco indicated Lange "should

not be read as standing for the proposition that the trial court

may not increase a defendant's sentence if he has begun to serve

it"). DiFrancesco "stands for the proposition that the double

jeopardy clause does not provide an absolute bar to increasing a

defendant's sentence." Henry, 680 F.2d at 411. See Fogel, 829

F.2d at 87 ("the Court in DiFrancesco left undisturbed the

principle announced in Bozza that a court may permissibly

increase a sentence if necessary to comply with a statute").

14

In Massachusetts, when determining whether a defendant has

a legitimate expectation of finality in his or her sentence

based on double jeopardy principles, we consider several

different factors, including the legality of the original

sentence, the timeliness of any motion to revise or revoke,

whether a motion to stay the execution of the sentence was

filed, and whether the sentence already has been fully served.

Ellsworth, 485 Mass. at 34. See Commonwealth v. Grundman, 479

Mass. 204, 207-208 (2018); Commonwealth v. Scott, 86 Mass. App.

Ct. 812, 815 (2015). In the context of revisions made by a

sentencing judge, we have said that "[a] sentence is considered

final once the sixty-day window within which to file a motion to

revise or revoke has expired," as set out in Mass. R. Crim. P.

29, 489 Mass. 1503 (2022) (rule 29). Ellsworth, supra. See

Aldoupolis, 386 Mass. at 274 (sentence is final subject to

judge's limited power to revise and revoke within sixty days

after imposition).9

9 This sixty-day period set out in rule 29 (a) "substitutes

a fixed time period . . . for the exercise of a judge's power in

lieu of the traditional -- and more uncertain -- common law

period of 'term of court.'" Aldoupolis, 386 Mass. at 271. See

District Attorney for the N. Dist. v. Superior Court, 342 Mass.

119, 122 (1961) ("At common law the sentences could not have

been revised . . . after the end of the term or sitting");

Commonwealth v. Weymouth, 2 Allen 144, 145 (1861) ("It seems to

have been recognized as one of the earliest doctrines of the

common law, that the record of a court may be changed or amended

at any time during the same term of the court in which a

judgment is rendered"). Therefore, I would reject the

15

Because an illegal sentence "contravenes the intention of

the Legislature . . . the modification of an illegal sentence,

in itself, has not been seen as subjecting a defendant to

multiple punishments." Selavka, 469 Mass. at 510. The

corrected sentence simply "imposes a valid punishment for an

offense instead of an invalid punishment for that offense," even

where the corrected sentence is harsher. Id., quoting Bozza,

330 U.S. at 167. A sentencing judge has the flexibility to

respond if an error in the sentence "is discovered in a timely

manner." Dunbrack v. Commonwealth, 398 Mass. 502, 506 (1986).

See Bozza, 330 U.S. at 166-167; State v. Schubert, 212 N.J. 295,

309 (2012), quoting State v. Austin, 335 N.J. Super. 486, 494

(App. Div. 2000) ("An illegal sentence that has not been

completely served may be corrected at any time without impinging

upon double-jeopardy principles"); People v. Williams, 14 N.Y.3d

198, 212, cert. denied, 562 U.S 947 (2010) ("Our precedent has

long recognized that courts have the inherent authority to

correct illegal sentences").

defendant's suggestion to limit the time period for a judge to

correct an illegal sentence to the same "term of court" in which

a defendant has been sentenced. The Appellate Division was not

created by statute until 1943. Macey, supra at 2. The common-

law rule that sentences were not to be revised after the end of

the term or sitting was not established with such a judicial

body in mind.

16

A defendant's expectation of finality is diminished when

his or her sentence is illegal. Selavka, 469 Mass. at 513.

Nonetheless, where a defendant's expectation of finality in his

or her initial sentence has "'crystallized' after enough time,"

even an illegal sentence may become final for purposes of double

jeopardy. Id., quoting United States v. Lundien, 769 F.2d 981,

987 (4th Cir. 1985), cert. denied, 474 U.S. 1064 (1986).

Generally, other jurisdictions have held that an illegal

sentence can be corrected while a defendant still is serving his

or her sentence but have rejected such an upward modification

where a defendant has completed the original sentence. See

Williams, 14 N.Y.3d at 215-216 & n.2 (discussing Federal circuit

and State cases). See, e.g., United States v. Silvers, 90 F.3d

95, 101 (4th Cir. 1996) ("Although an expectation of finality

does not legitimately accrue by the mere commencement of the

sentence, once a defendant fully serves a sentence for a

particular crime, the [d]ouble [j]eopardy [c]lause's bar on

multiple punishments prevents any attempt to increase thereafter

a sentence for that crime"); United States v. Daddino, 5 F.3d

262, 265 (7th Cir. 1993) (where time for appeal passed and

defendant completed incarcerated portion of sentence and paid

all fines and restitution, those portions of sentence could not

be amended without violating legitimate expectation of

finality); United States v. Rourke, 984 F.2d 1063, 1066 (10th

17

Cir. 1992) ("defendant cannot acquire a legitimate expectation

of finality in a sentence which is illegal, because such a

sentence remains subject to modification"); United States v.

Arrellano-Rios, 799 F.2d 520, 524-525 (9th Cir. 1986) (jeopardy

attaches on completion of sentence and it may not be increased

after that point); United States v. Warner, 690 F.2d 545, 555

(6th Cir. 1982) (double jeopardy clause does not prohibit

amending sentence to add mandatory special parole term); Oksanen

v. United States, 362 F.2d 74, 80 (8th Cir. 1966) (sentencing

defendant to three years' probation beyond original probationary

sentence after completion of original probationary term violated

double jeopardy clause); Smith v. State, 334 So.3d 377, 379

(Fla. Dist. Ct. App. 2022) ("when a defendant serves the

entirety of his or her sentence, it violates the prohibition

against double jeopardy to resentence the defendant"); Allen v.

State, 853 So.2d 533, 536 (Fla. Dist. Ct. App. 2003) ("It does

not offend double jeopardy principles to resentence a defendant

to harsher terms when the original sentence was invalid,

particularly when, as in the instant case, it is the defendant

who brings his sentence into question"). Contrast Breest v.

Helgemoe, 579 F.2d 95, 99-101 (1st Cir. 1978) (court had duty to

correct statutorily invalid sentence even after petitioner began

service and did not violate double jeopardy principles in doing

so, though time for court to correct invalid sentence is subject

18

to some temporal limit to prevent violation of due process);

Grant v. State, 379 P.3d 993, 994 (Alaska Ct. App. 2016)

(illegally lenient sentence not "meaningfully imposed," thus,

upward modification to extent necessary to cure illegality not

violative of double jeopardy); Waddell v. People, 2020 CO 39,

¶ 14 ("Double [j]eopardy [c]lauses may function as a shield

against multiple punishments, [but] they may never be used as a

sword to enforce an illegal sentence"); People v. District

Court, 673 P.2d 991, 997 (Colo. 1983) (en banc) ("Granting

defendants a right to benefit from illegal sentences serves no

sound public policy"); State v. Fry, 61 Haw. 226, 228-230 (1979)

(court had duty to correct illegal sentence and impose original

prison term even after seven-year delay and after defendant was

released from prison because "[w]here the original punishment

was invalid, as here, a correction which produces a valid

sentence does not place the defendant in double jeopardy even if

that correction increases his punishment"); State v. Calmes, 632

N.W.2d 641, 649 (Minn. 2001) (correction of illegal sentence did

not violate double jeopardy because it did "not impose multiple

punishments, but simply the single punishment that was mandatory

at the time of sentencing"); State v. Yazzie, 2009 UT 14, ¶ 17,

quoting State v. Babbel, 813 P.2d 86, 88 (Utah 1991) ("district

19

court can correct the [illegal] sentence at any time, which

includes before, after, 'and even if there is no appeal'").10

In Massachusetts, the court in Selavka set out a sixty-day

time period, as specified in rule 29 (a), for the Commonwealth

to seek to correct sentencing errors under the rule. Selavka,

469 Mass. at 513-514. "Even an illegal sentence will become

final for the purposes of double jeopardy after the expiration

of that time period, and no longer will be subject to revision

or revocation within the terms of rule 29 (a)." Id. at 514.

Until Selavka, it was unclear whether the Commonwealth could

file a motion pursuant to rule 29 (a). This sixty-day time

10Other courts have concluded that resentencing a defendant

who already has been released from confinement is

unconstitutional. See DeWitt v. Ventetoulo, 6 F.3d 32, 35-36

(1st Cir. 1993), cert. denied, 511 U.S. 1032 (1994) (considering

multiyear period between suspension and reimposition of

sentence, reasonableness of defendant's reliance, his release

from prison and formation of new roots, tardiness of State in

failing to correct error, and existence of alternative parole

revocation remedy, "very rare exception to the general rule that

courts can, after sentence, revise sentences upward to correct

errors"); Lundien, 769 F.2d at 986-987 (due process may be

denied when sentence enhanced after defendant has served so much

of sentence that expectations as to finality have crystallized);

Jordan v. United States, 235 A.3d 808, 816 n.10, 818 (D.C. 2020)

(later upward revision to defendant's sentence may constitute

substantive due process violation; but declining to take

concurrence's approach that double jeopardy clause, as opposed

to due process protections, imposes limits on court's ability to

correct illegal sentence, as court "has never found a violation

of double jeopardy where a court corrects a sentence that, when

imposed, was outside its statutory authority"); Williams, 14

N.Y.3d at 217 (after release from prison and once time to appeal

has expired, legitimate expectation of finality arises and

double jeopardy prevents upward modification to sentence).

20

period, coupled with a finding that either "any part of the

disposition was illegal," rule 29 (a) (1), or "that justice may

not have been done," rule 29 (a) (2), "reasonably balances the

defendant's interest in finality against society's interest in

law enforcement." Aldoupolis, 386 Mass. at 275.

Despite his concession in his memorandum in support of his

G. L. c. 211, § 3, petition that rule 29 (a) does not apply to

the Appellate Division, the defendant now argues that rule 29

(a) should apply to sentences imposed by the Appellate

Division.11 Today, the court endorses this view. I agree with

the single justice that rule 29 (a) does not apply to the

Appellate Division; therefore, the sixty-day rule discussed in

Selavka is not conclusive on the double jeopardy issue. See,

e.g., Mass. R. Crim. P. 29 (a) (referencing "trial judge").

In Callahan, 419 Mass. at 308, the court discussed the

Appellate Division in relation to rule 29 (a). There, the

defendant argued that he filed his motion to revise his sentence

within the sixty-day time period set out in rule 29 (a) because,

although it was not filed within sixty days of the imposition of

11The defendant points to Committee for Pub. Counsel Servs.

v. Chief Justice of the Trial Court (No. 1), 484 Mass. 431, 450,

S.C., 484 Mass. 1029 (2020), to support his argument that this

court has acknowledged the limitations of the judicial branch as

a whole to revise and revoke sentences after sixty days. That

case does not help the defendant's position. There, the court

stated that a sentencing judge may review a sentence imposed

within the limits of rule 29 (a). Id. at 450-451.

21

his initial sentence, he filed it within sixty days of the

Appellate Division increasing his sentence. Id. This court

rejected that argument "because the Appellate Division is not an

appellate court within the meaning of rule 29 (a)," as it does

not have authority to review a judgment beyond the sentence

imposed. Id. See Commonwealth v. Malick, 86 Mass. App. Ct.

174, 185 (2014) (appeal to Appellate Division "functions as an

exclusive and final challenge to a sentence," and its affirmance

of sentence "precluded any separate relief by motions to revise

or revoke under" rule 29).

As previously noted, the Appellate Division was created in

response to a suggestion from the Judicial Council of

Massachusetts to allow for "the Superior Court itself" in an

appellate session to review a sentence. Eighteenth Report of

the Judicial Council, Pub. Doc. No. 144, at 28 (1942). Its

purpose is to correct "extreme harshness or leniency by judges

in sentencing" (citation omitted). Lena, 369 Mass. at 574 n.2.

Review in the Appellate Division "has to some extent the

character of an extension . . . of the trial judge's effort to

attain a just sentence." Gavin, 367 Mass. at 342. "[I]t can be

doubted that such distinctions as can be pointed to between the

functions of the trial judge and the Appellate Division are such

as to make a constitutional difference" in analyzing a sentence

imposed by the Appellate Division. Id.

22

Despite the similarity between the Appellate Division and a

sentencing judge in the focus for both entities to ensure a just

sentence, the purpose of the Appellate Division is distinct from

that of an ordinary trial court judge imposing an initial

sentence in that its focus is limited to reviewing the sentence

to correct "extreme" deviations. Lena, 369 Mass. at 574 n.2.

See Gavin, 367 Mass. at 341 (statement of reasons may be written

more easily by Appellate Division revising sentence than by

trial judge imposing original sentence, because "the former

would be a more focused analysis looking to correction of

possible misjudgment embodied in the sentence reviewed rather

than to the formation of an original judgment"). See also

Callahan, 419 Mass. at 308 (Appellate Division has no authority

over judgment of conviction). The Appellate Division is the

only judicial body permitted to review a lawful sentence,

D'Amour, 428 Mass. at 746, and it has the power to reduce,

increase, or affirm the sentence imposed by the sentencing

judge, Croteau, petitioner, 353 Mass. at 738. Additionally,

although a defendant has a right to appeal his or her sentence

where it qualifies for review, G. L. c. 278, §§ 28A, 28B, the

defendant makes the choice whether to open his or her sentence

to revision by the Appellate Division, affecting his or her

legitimate expectation of finality. See Commonwealth v.

Tinsley, 487 Mass. 380, 391-392 (2021); Walsh, 358 Mass. at 197

23

(when defendant appeals sentence to Appellate Division "he

assumes the same risks inherent in an appeal from a

conviction").

It is apparent then, in my view, that the nature of

sentences altered by the Appellate Division markedly is

different from those imposed by a trial judge or a plea judge.

In accordance with the statutorily granted permission to

promulgate rules and regulations for proceedings in the

Appellate Division, the Superior Court created Rule 64 of the

Rules of the Superior Court specifically to address the

procedure in the Appellate Division. This rule makes no mention

of the sixty-day period to move for revision or revocation of a

sentence issued by the Appellate Division.12 For all of these

reasons, I do not think that rule 29 (a) applies to the

Appellate Division, and the sixty-day time restriction that the

rule imposes for revising or revoking sentences is

inapplicable.13

Because the statute entrusts "[t]he superior court" to

12

establish by rule "forms for appeals" to the Appellate Division

and "regulations of procedure relative thereto, consistent with

law, as justice may require," G. L. c. 278, § 28B, I do not

think it appropriate for the court to create its own rule

surrounding the timing of such revisions where there is a

distinction between the jeopardy surrounding sentencing

decisions of the Appellate Division and those of a sentencing

judge.

13I do not violate principles of equal protection by saying

so. See Harris v. McRae, 448 U.S. 297, 322 (1980) ("The

24

This is not to say that the Appellate Division can revise

and revoke illegal sentences it has imposed without limitation.

Although Selavka does not apply to sentence revisions by the

Appellate Division, I take from it that the diminished

expectation of finality stemming from an illegal sentence "does

not afford carte blanche to correct erroneous sentences at any

point subsequent to their initial imposition." Selavka, 469

Mass. at 513. The focus in a double jeopardy context is "the

question of the defendant's legitimate expectation of finality."

Ellsworth, 485 Mass. at 34. As discussed supra, the

modification of an illegal sentence, even where the revised

sentence is harsher, does not subject a defendant to multiple

punishments if done in a timely manner. Selavka, supra at 510-

511. In determining whether a defendant has a legitimate

expectation of finality in a sentence, a reviewing court

considers whether the defendant filed a motion for

postconviction relief putting his sentence at issue, the

illegality of the sentence, and whether the sentence has been

fully served. See Tinsley, 487 Mass. at 391-392; Ellsworth,

supra; Commonwealth v. Cumming, 466 Mass. 467, 471 (2013).

guarantee of equal protection . . . is not a source of

substantive rights or liberties, but rather a right to be free

from invidious discrimination in statutory classifications and

other governmental activity" [footnote omitted]).

25

In Selavka, 469 Mass. at 514, the defendant had served

seven months of incarceration before being released on parole.

He had completed his committed sentence and begun serving a

seven-year probationary term when the Commonwealth sought to

impose the statutorily required global positioning system (GPS)

monitoring condition, which was not imposed during his plea

colloquy or at the subsequent sentencing hearing. Id. at 503.

Additionally, the defendant in Selavka was sentenced as a result

of his guilty plea and was given no opportunity to withdraw the

plea on the addition of the GPS monitoring condition, which did

not "conform to [his] legitimate sentence expectation." Id. at

514, quoting Commonwealth v. Goodwin, 458 Mass. 11, 21 (2010).14

There, it would have been "contrary to the spirit of [Mass. R.

Crim. P. 12 (c) (2), as appearing in 442 Mass. 1511 (2004),] for

a judge to accept a plea bargain and impose the recommended

sentence, and then, after the defendant has lost the opportunity

to withdraw his plea, increase the sentence." Selavka, supra at

14The defendant here was not in a "similar" position

because he withdrew his direct appeal in February 2021 in

reliance on his illegal sentence. Ante at note 10. There is a

significant distinction. In the defendant's case, he did not

relinquish his constitutional right to have a trial by jury by

admitting to guilt and agreeing with the Commonwealth to a

particular punishment. He exercised his right to go to trial,

was convicted by a jury, and, as a result, had no control over

his sentence. These circumstances are markedly different, as

"defendants 'pleading guilty pursuant to a sentencing

[agreement] bargain more certainty about their fate'" (citation

omitted). Goodwin, 458 Mass. at 20-21.

26

515, quoting Goodwin, supra. The defendant here is in a

considerably different situation.

Here, the defendant, after being convicted by a jury,

initially was sentenced by the trial judge to from six to eight

years in State prison (for the incarcerated portion of his

sentence) on April 23, 2019. He appealed to the Appellate

Division, where he received a revised sentence (albeit an

illegal one in his favor) in November 2020 of from four to six

years in State prison. "[A]lthough '[t]he double jeopardy

proscription protects the defendant against governmental

oppression, it does not "relieve a defendant from the

consequences of his voluntary choice" to invalidate his original

punishment'" (citation omitted). Cumming, 466 Mass. at 471.15

Neither the defendant nor the Commonwealth filed a motion to

15 The court states: "The Commonwealth maintains that the

defendant's finality interest in this case is different from the

interest of the defendant in Selavka; it contends that because

the defendant here appealed his sentence to the Appellate

Division, he has no finality interest in an illegal sentence

imposed by that body." Ante at . This describes the concept

of continuing jeopardy, which characterizes the position of

every defendant who chooses to appeal his or her conviction.

See Commonwealth v. Sanchez, 485 Mass. 491, 506-507 (2020)

(protections against double jeopardy not offended where

"defendant has knowingly unsettled the finality of his or her

conviction and sentence by appealing" and "defendant is

understood to remain in continuing jeopardy . . . throughout the

appellate process"). Although I recognize that the defendant

may have assumed that his "appellate" process had ended once the

illegal November sentence had issued, his voluntary appeal of

his sentence carries significant weight in determining whether

he had a legitimate expectation of finality.

27

revise or revoke the November sentence, despite its illegality.

Contrast Cumming, supra (defendant not placed twice in jeopardy

for resentencing after defendant challenged his original

sentences in motion under Mass. R. Crim. P. 30 [a], as appearing

in 435 Mass. 1501 [2001]). In May 2021, approximately six

months after the imposition of the November sentence of from

four to six years and approximately two years after he had

received his initial sentence of from six to eight years, the

Appellate Division notified him of its intention to revise and

revoke what it now recognized to be an illegal sentence.

The May sentence imposed by the Appellate Division, of from

five to six years, was considerably more favorable to the

defendant than the original sentence that he received from the

trial judge. It did not increase the potential maximum amount

of imprisonment that the defendant may serve, but rather

increased the illegal four-year floor to a five-year floor, the

minimally required period of incarceration. See Stewart v.

Scully, 925 F.2d 58, 63-65 (2d Cir. 1991) (plaintiff had

expectation of finality where court could have reduced minimum

term to comply with statute but chose to increase maximum term

instead); Fogel, 829 F.2d at 90 ("The . . . court . . . was free

to correct the defect in the original sentence but only to the

extent necessary to bring the sentence into compliance with the

statute. Because the . . . court unnecessarily increased the

28

appellant's sentence, [it produced] a violation of the double

jeopardy clause"). The defendant still was incarcerated for

these offenses when his sentence was corrected, and he had a

significant period remaining on his term of incarceration.

Contrast Schubert, 212 N.J. at 313 (increase of sentence after

it has been completed violative of double jeopardy principles).

This situation patently is different from the facts in Selavka,

where the defendant received an additional condition after his

release from confinement that had a severe impact on his privacy

interests and to which he did not agree when tendering a plea to

the offenses with which he was charged. Selavka, 469 Mass. at

514. See Commonwealth v. Feliz, 481 Mass. 689, 704 (2019),

S.C., 486 Mass. 510 (2020) (GPS monitoring cannot be deemed

"minimally invasive" where it gathers significant information

over long period of time and causes several "practical problems

and life inconveniences").

Although the decision of the Appellate Division "shall be

final," meaning the defendant may not appeal his or her sentence

on fairness grounds to the appellate courts, G. L. c. 278,

§ 28B, and "[a] defendant's expectation of finality in his

sentence increases once he has begun to serve that sentence,"

Selavka, 469 Mass. at 514, the defendant's expectation of

finality in the illegal November sentence had not yet

29

"crystallized" for all of the above reasons.16 I would therefore

decline to invalidate the corrected, legal May sentence imposed

by the Appellate Division and to order reinstatement of the

illegal November sentence.17

Finally, I briefly address the defendant's assertion that

the May sentence was correctable, in the alternative, under

Mass. R. Crim. P. 30 (a). Although the single justice did not

16Recognition of the "shall be final" language in § 28B

must be read in light of all of the other factors characterizing

the Appellate Division, its purpose, and the defendant's

legitimate expectation of finality in this particular case,

discussed at length supra. See Barros, 460 Mass. at 1015

("shall be final" in statute means that party may not appeal "as

a matter of right to the appellate courts from the Appellate

Division's decision"). I do not conclude that "because the

decision of the Appellate Division is, by statute, final, the

defendant has no legitimate finality interest in its

determination." Ante at . Instead, after closely analyzing

the nature of the Appellate Division and the factors surrounding

the illegal sentence and its subsequent revision, I conclude

that the defendant's expectation of finality in the illegal

sentence had not "crystallized" in this case.

Furthermore, despite the court's decision in Selavka, and

even if this case were not distinguishable, I am hesitant to

conclude that this court should sanction an illegal sentence.

See Commonwealth v. Montarvo, 486 Mass. 535, 542 (2020) ("We are

bound by [the] choice[s]" of Legislature in interpreting and

applying statutes).

17Although I appreciate the power that the Commonwealth and

the courts wield in criminal cases, it is important that we

consider the arguments on both sides in coming to a fair and

just conclusion. See Mele v. Fitchburg Dist. Court, 850 F.2d

817, 822 (1st Cir. 1988) ("opportunity to consider arguments on

both sides . . . is [a concept] at the root of our adversarial

system of justice"). There are legitimate interests and

arguments on both sides of most issues that reach us.

30

address this claim, the defendant preserved the issue by raising

it in his memorandum in support of his G. L. c. 211, § 3,

petition to the single justice. Contrast Lykus v. Commonwealth,

432 Mass. 160, 164 (2000) ("As the defendant did not raise this

issue before the lower court, or the single justice, it is not

properly before us on appeal").

Rule 30 (a) states:

"Any person who is imprisoned or whose liberty is

restrained pursuant to a criminal conviction may at any

time, as of right, file a written motion requesting the

trial judge to release him or her or 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 Reporters' Notes to rule 30 (a) indicate that it is

available to seek the correction of an illegal sentence, which

includes "facially illegal sentences" and "sentences premised

upon a major misunderstanding by the sentencing judge," but not

an illegally imposed sentence, "where the irregularity lies with

the procedure employed in imposing the sentence."18 Reporters'

18"'An "illegal sentence" is one that is in excess of the

punishment prescribed by the relevant statutory provision or in

some way contrary to the applicable statute,' Commonwealth v.

Layne, 21 Mass. App. Ct. 17, 19 (1985), or is 'premised on a

major misunderstanding by the sentencing judge as to the legal

bounds of his authority,' Commonwealth v. McGuinness, 421 Mass.

472, 475 (1995)." Commonwealth v. Walters, 479 Mass. 277, 280

(2018). "A sentence that contradicts the statutory provision in

question, even where those contradictions favor the defendant,

is also illegal." Id. at 281.

31

Notes to Rule 30 (a), Mass. Ann. Laws Court Rules, Rules of

Criminal Procedure, at 339 (LexisNexis 2022-2023). According to

the Reporters' Notes, an illegally imposed sentence is

correctable on a motion filed pursuant to rule 29 (a). Id.

In Commonwealth v. Hill, 79 Mass. App. Ct. 806, 808-809

(2011), the Appeals Court held that rule 30 (a) may be used to

challenge a sentence imposed by the Appellate Division. This

conclusion is supported by recent case law from this court. See

Sabree v. Commonwealth, 479 Mass. 1006, 1007 (2018) (defendant

could have raised claim regarding Appellate Division's authority

or jurisdiction to restructure and amend sentences pursuant to

rule 30 [a]); Cucinelli v. Commonwealth, 477 Mass. 1004, 1004

n.3 (2017) (to extent defendant claimed that his new sentence

ordered by Appellate Division was illegal, he could file motion

under rule 30 [a]); Jones v. Commonwealth, 461 Mass. 1005, 1005-

1006 (2012) (petitioner had other means to seek relief from

decision of Appellate Division, one being rule 30 [a] motion).

But see Callahan, 419 Mass. at 309 (once party enters appeal

from sentence to Appellate Division, "the judge issuing the

In Layne, the Appeals Court held that a motion was filed

improperly under rule 30 (a) where it did not allege an "illegal

sentence," but alleged that the sentencing judge misapprehended

that the applicable parole eligibility standards soon would be

relaxed by the Legislature; such a motion would have been filed

properly under rule 29 (a) within the relevant time constraints.

Layne, 21 Mass. App. Ct. at 18-20.

32

order from which an appeal is taken is divested of jurisdiction

to act on motions to rehear or to vacate" under rule 29 [a]).

Considering our holding in Callahan, in my view, any rule 30 (a)

motion filed by a defendant would need to be to the relevant

panel of judges who imposed the sentence in the Appellate

Division, despite the language in rule 30 (a) specifying that

the motion is to be filed with the "trial judge." The original

sentencing judge, after appeal to the Appellate Division, is

divested of jurisdiction. Although "[t]he rule assigns the

motion to the trial judge who heard the case, on the theory that

his familiarity with the case can assist in its effective

handling," where a defendant challenges his sentence as altered

by the Appellate Division, it would be in the best position to

respond to such a challenge. McCastle, petitioner, 401 Mass.

105, 107 (1987). See Averett, petitioner, 404 Mass. 28, 31

(1989) ("It is sensible to restrict an individual who has been

convicted and imprisoned to rule 30 postconviction relief before

the trial judge when that individual objects to the imposition

of confinement, but it is not free, easy, cheap, or expeditious

to impose a rule 30 hearing before a judge on a person demanding

an immediate release from prison on grounds of which the judge

is completely unaware").

In Commonwealth v. Simmons, 448 Mass. 687, 691 (2007), the

court stated that the defendant's motion to vacate his sentence

33

because of alleged violations of his constitutional right to

speedy sentencing and the sentencing judge's consideration of

impermissible factors appropriately was treated as a motion

pursuant to rule 30 (a) by the Appeals Court. In Commonwealth

v. Layne, 386 Mass. 291, 297 (1982), the defendant filed an

initial "motion to revise and revoke" under rule 30 (a). One

year later, he filed another motion to vacate illegal sentences

based on rule 30 (a), regarding whether the sentences originally

imposed were indeterminate as required by G. L. c. 279, § 24,

and whether he had a constitutionally protected right to have

his sentences reviewed by a parole board. Id. The court stated

that "these grounds could reasonably have been raised in the

original motion," and on this basis dismissed the appeal from

the order denying the motion. Id.

In Commonwealth v. Bruzzese, 437 Mass. 606, 614 (2002), the

court held that a judge's revocation of the defendant's

probation on one of his complaints, which resulted in him

serving another year beyond what was contemplated by the order

of the initial sentencing judge, "violated principles of double

jeopardy," and thus, his "motion under rule 30 (a) should have

been allowed." See Commonwealth v. Costa, 472 Mass. 139, 143

(2015) (rule 30 [a] proper mechanism for judge to correct now

unconstitutional life sentence); Commonwealth v. Parrillo, 468

Mass. 318, 320 (2014) (rule 30 [a] was "proper mechanism by

34

which to challenge constitutionality of the [community parole

supervision for life] sentencing scheme"); Cumming, 466 Mass. at

470-472 (considering defendant's double jeopardy challenges to

judge's resentencing order pursuant to rule 30 [a]).

In light of this case law, regardless of whether the

defendant's claim was that the May sentence was "illegal" or

"illegally imposed," it is my position that rule 30 (a) would

have been a proper vehicle through which to raise his double

jeopardy challenge, if he had raised it with the Appellate

Division. Cf. Aldoupolis, 386 Mass. at 269 ("The Reporters'

Notes, not officially approved or reviewed by this court, are

not binding on this court"). As I have explained supra,

however, the delay in the correction of the illegal sentence

here did not implicate principles of double jeopardy.

My determination that rule 29 (a) does not apply to the

Appellate Division is not in conflict with my determination that

rule 30 (a) does apply. Rule 30 (a), adopted in 1979, was

created to "simplify post conviction procedure, while

maintaining the full scope of relief previously available."

Reporters' Notes to Rule 30 (a), Mass. Ann. Laws Court Rules,

Rules of Criminal Procedure, at 338 (LexisNexis 2022-2023).

This rule permits a defendant to "seek release from illegal

confinement or other restraint on their liberty" and seek the

correction of an illegal sentence at any point while the

35

defendant's liberty is restricted, consolidating two formally

separate remedies, a writ of error and habeas corpus. Id. at

338-339. See Mass. R. Crim. P. 30 (a) ("person who is

imprisoned or whose liberty is restrained pursuant to a criminal

conviction may at any time, as of right, file a written

motion"); St. 1979, c. 344, § 12, effective July 1, 1979;

Commonwealth v. Lupo, 394 Mass. 644, 646 (1985). There is no

time limit in rule 30 (a), contrary to the sixty-day limitation

in rule 29 (a). In addition to a restraint of liberty such as

incarceration or probation, the rule also encompasses sentences

"contain[ing] a requirement that the defendant be subject to

community parole supervision for life . . . or register as a sex

offender." Commonwealth v. Williams, 96 Mass. App. Ct. 610, 613

(2019). The generous language in rule 30 (a) allowing a

challenge to the legality of a sentence at any time by a

defendant whose liberty is restrained suggests that it was

intended to apply more broadly than rule 29 (a) for the purposes

of a defendant's challenge to the legality of his or her

sentence, and thus that rule 30 (a) should apply to the

Appellate Division. See Reporters' Notes to Rule 29 (a), Mass.

Ann. Laws Court Rules, Rules of Criminal Procedure, at 327

(LexisNexis 2022-2023) (rule 29 [a] [1]'s authority to challenge

illegal sentence limited to Commonwealth and trial judge,

because, in part, "[q]uite apart from [r]ule 29 [a], [r]ule

36

30 [a] gives the defendant the right to challenge an illegal

sentence at any time").

In conclusion, because I do not think that rule 29 (a)

applies to the Appellate Division, and in these circumstances,

where the defendant still is serving the incarcerated portion of

his sentence and where the November sentence was illegal, the

May sentence revision did not violate the protections against

double jeopardy. It simply allowed the Appellate Division to

minimally correct the sentence to bring it within statutorily

permissible parameters while remaining considerably reduced from

the original sentence that the defendant received. Therefore, I

would affirm the decision of the single justice to uphold the

May sentence of from five to six years in State prison.