Argued: October 9, 2014.
Indictments found and returned in the Superior Court Department on July 15, 1993.
A motion to correct illegal sentences, filed on February 7, 2011, was heard by Bertha D. Josephson, J.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
William W. Adams for the defendant.
Dianne M. Dillon, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[21 N.E.3d 151] Cordy, J.
In the summer of 1993, the defendant broke into several homes in the Springfield metropolitan area, attacking the inhabitants and carrying off their possessions. At trial, he was convicted on seventeen indictments, including three counts of aggravated burglary that form the basis of this appeal. Two of the three counts arose from the burglary of a dwelling in Agawam
involving two assaults therein (Agawam indictments). The third count arose from a break into a home in Springfield and an assault on one of its inhabitants (Springfield indictment).
The convictions on those indictments were affirmed. 42 Mass.App.Ct. 1105, 675 N.E.2d 1182 (1997). The defendant filed in the Superior Court a motion for postconviction relief seeking to correct illegal sentences, contending that the two Agawam indictments were duplicative and that an amendment to the Springfield indictment as to the person assaulted rendered that conviction unconstitutional, in violation of art. 12 of the Declaration of Rights of the Massachusetts Constitution, under the rule of Commonwealth
v. Snow, 269 Mass. 598, 169 N.E. 542 (1930). A judge denied the motion; a panel of the Appeals Court affirmed the denial in a memorandum and order pursuant to that court's rule 1:28, 84 Mass.App.Ct. 1106, 991 N.E.2d 189 (2013), and we granted the defendant's application for further appellate review.
With respect to the Agawam indictments, we agree with the defendant that G. L c. 266, § 14 (§ 14), permits only one burglary conviction per dwelling and that the conviction on the duplicative indictment must be vacated. With respect to the Springfield indictment, we conclude that because § 14 permits only a single conviction per dwelling, a conviction on the original Springfield indictment would have precluded a conviction on the amended one. Therefore, the name of the person assaulted was not an essential element and the conviction on the amended Springfield indictment did not violate the rule set forth in the Snow case. Accordingly, we reverse in part and affirm in part the order denying the defendant's motion for postconviction relief.
The following facts are drawn from testimony before the grand jury and are supplemented by testimony at trial. In the middle of the night on June 29, 1993, the defendant opened the unlocked rear door to a house on Winthrop Street in Springfield, entered the dwelling, pilfered a key to a 1989 Mercury Merkur automobile parked in the driveway, and -- while in the dwelling attempting to abscond with a television -- was confronted by one of the occupants, Sandra Goodrow. The defendant struck Sandra in the head, fled the dwelling, and escaped in the Merkur. Carmella Goodrow, her mother-in-law and owner of the dwelling, reported the break-in and assault to the Springfield police.
Late in the evening on July 2, 1993, the defendant drove the Merkur to a street near the home of Stanley and Alice Glogowski in Agawam. The defendant walked up to their home, opened a
rear door and entered the dwelling. Stanley heard a noise, commenced an investigation, and soon discovered a two-by-four piece of lumber lying by the unlocked rear door. After locking the door, he retrieved the lumber and carried it down to the cellar. The defendant, lying in ...