Argued November 6, 2015.
Indictment found and returned in the Superior Court Department on May 16, 2006.
A motion for a new trial, filed on June 5, 2014, was considered by Kathe M. Tuttman, J.
Judith Ellen Pietras for the defendant.
Erin J. Anderson, Assistant District Attorney, for the Commonwealth.
Present: Milkey, Carhart, & Massing, JJ.
[42 N.E.3d 1168] Massing, J.
The defendant, Edward Armstrong, appeals from the order denying his motion for new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The defendant alleged in his motion that his guilty plea eight years earlier to a charge of armed home invasion was invalid for lack of a factual basis, contrary to the requirements of Commonwealth v. Hart, 467 Mass. 322, 325-326, 4 N.E.3d 1231 (2014), and Mass.R.Crim.P. 12(c)(5)(A), as appearing in 442 Mass. 1511 (2004). Specifically, he claimed that the plea colloquy failed to establish a factual basis for one of the elements of the crime of armed home invasion: that having entered an empty dwelling, he " remain[ed] in such dwelling place knowing or having reason to know that one or more persons are present." G. L. c. 265, § 18C, inserted by St. 1993, c. 333. A Superior Court judge (motion judge) denied the motion without a hearing. Discerning no abuse of discretion or other error of law, see Commonwealth
v. Kirwan, [42 N.E.3d 1169] 448 Mass. 304, 314, 860 N.E.2d 931 (2007), we affirm.
On September 27, 2006, the defendant pleaded guilty to a five-count indictment charging him with, among other things, armed home invasion. At the same time, he pleaded guilty to three counts in two 2005 indictments arising out of two prior incidents. With respect to one of the prior incidents, the plea judge sentenced the defendant to a State prison term of from five to six years on a conviction of assault and battery by means of a dangerous weapon (ABDW), imposed on a " forthwith" basis. G. L. c. 279, § 27. The judge imposed State prison sentences of from four to five years with respect to two of the convictions associated with the 2006 armed home invasion (assault by means of a dangerous weapon and possession of a firearm without a license), these sentences to run concurrently with each other and with the forthwith sentence for ABDW.
With respect to the armed home invasion guilty plea, although the statutory sentencing range is " imprisonment in the state prison for life or for any term of not less than twenty years," G. L. c. 265, § 18C, the judge sentenced the defendant to a term of probation, to commence after completion of the three concurrent State prison sentences. The remaining charges, including a charge of receiving a stolen motor vehicle associated with the home invasion incident, were placed on file with the defendant's consent.
In July, 2012, while serving his probationary term for the 2006 armed home invasion conviction, the defendant was indicted on a new charge of home invasion as well as armed robbery and other crimes. The plea judge having retired, on April 26, 2013, a second Superior Court judge found the defendant in violation of the terms of his probation based on the new charges. The judge removed from the file the 2006 associated conviction of receiving a stolen motor vehicle and sentenced the defendant to a State prison term of from seven to nine years on that charge. The judge continued the defendant's probation on the 2006 home invasion conviction for another five years, to commence after completion of the sentence for receiving a stolen motor vehicle. On May 22, 2013, after a jury trial, the defendant was acquitted on the 2012 indictments.
On June 5, 2014, the defendant filed his motion for a new trial under rule 30(b), alleging for the ...