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Commonwealth v. Dykens

Supreme Judicial Court of Massachusetts, Middlesex

February 17, 2016

Kenneth Dykens

         Argued October 5, 2015.

          Indictments found and returned in the Superior Court Department on March 31, 2005.

         A motion to withdraw a plea and vacate convictions, filed on October 11, 2013, was heard by Peter M. Lauriat, J.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Timothy St. Lawrence for the defendant.

          Hallie White Speight, Assistant District Attorney, for the Commonwealth.

         Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Duffly, J. (dissenting, with whom Lenk and Hines, JJ., join).


          [45 N.E.3d 582] Cordy, J.

          This case is before us following the denial by a Superior Court judge of Kenneth Dykens's motion to vacate several convictions resulting from his guilty pleas in connection with a February, 2005, arrest for attempted burglary and other offenses. [45 N.E.3d 583] See Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). Specifically, he seeks to vacate two of his three convictions of attempted unarmed burglary in violation of G. L.

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c. 274, § 6, contending they are duplicative of his conviction on the third, and thus barred under principles of double jeopardy. He also seeks to vacate his conviction of possession of a burglarious tool or implement (a rock) in violation of G. L. c. 266, § 49, on the ground that the indictment failed to state a crime, and the Superior Court therefore lacked jurisdiction to accept a guilty plea and impose a sentence on it.

         We transferred Dykens's appeal to this court on our own motion to decide whether, where a defendant has pleaded guilty to multiple counts of attempted unarmed burglary, he may subsequently challenge his guilty pleas pursuant to Mass. R. Crim. P. 30 (a) on double jeopardy grounds or whether he has waived any such claim by pleading guilty; and whether, where a defendant over the course of a single late evening and early morning unsuccessfully tried to break into a home through three different access points, he may be charged with multiple counts of attempted unarmed burglary pursuant to G. L. c. 274, § 6, or whether those acts constitute a single continuous course of conduct rendering conviction on multiple counts duplicative.

         We conclude that although Dykens may bring his claim under rule 30 (a), the attempt statute, G. L. c. 274, § 6, permits multiple convictions for discrete, completed attempts of unarmed burglary; that whether separate indictments or complaints adequately charge separate attempts must be determined on the particulars of each case; and in the present case, that Dykens's multiple convictions and punishments were for separate attempts, and therefore his multiple convictions and punishments do not violate double jeopardy. We further conclude that the court lacked jurisdiction to accept Dykens's guilty plea as to the indictment charging possession of a burglarious tool or implement because the indictment failed to allege a crime. Accordingly, we affirm in part and reverse in part the denial of Dykens's motion for postconviction relief.

         1. Background.

         In the early morning hours of February 10, 2005, John and Jacqui Cram of Malden telephoned 911 after they heard the sounds of breaking glass and saw a figure moving around on their property. Malden police Officers Robert Selfridge and Brian Killion responded to the call and observed the following on their arrival: (1) a ladder that the Crams had last seen lying on the ground had been placed against the house to provide access to a second-story window; (2) a screen had been torn off a first-floor window; and (3) a sliding glass door at the

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rear of the house had been smashed. A large rock which had not previously been on the deck lay nearby and apparently had been used to break the glass.

         The officers observed fresh footprints in the snow, which Selfridge followed through neighboring streets and yards and over a chain link fence; he discovered Dykens hiding among some rocks. The officer ordered Dykens not to move, but Dykens attempted to escape. The two men scuffled, and Killion eventually arrived to assist. After a struggle, the officers were able to subdue Dykens and handcuff him. As they stood him up to transport him to the police station, Dykens kicked Killion in the face with a shod foot.

         In March, 2005, a grand jury indicted Dykens on seventeen counts stemming from his arrest, including three counts of [45 N.E.3d 584] attempted unarmed burglary[1] and one count of possession of a burglarious instrument (a heavy rock), which are at issue in this appeal.[2] Dykens pleaded not guilty to all charges at his arraignment, and subsequently filed a motion to dismiss eight of the seventeen indictments. As to two counts of attempted unarmed burglary, Dykens argued that they were duplicative of a third count. A judge denied the motion as to the multiple indictments for attempted unarmed burglary.

         On October 17, 2005, Dykens pleaded guilty to the three counts

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of attempted unarmed burglary, being a habitual offender, assault with intent to maim, assault and battery by means of a dangerous weapon, possession of a burglarious instrument, assault and battery on a public employee, and resisting arrest. Dykens was sentenced to from seven years to seven years and one day in State prison on the indictment charging him with assault with intent to maim, five years in State prison concurrent with that sentence on the indictment charging him with attempted unarmed burglary as a habitual offender, and five years probation from and after his completed sentences on the other counts.

         After Dykens was released from prison, a probation violation warrant issued. On March 22, 2013, a Superior Court judge held a final probation surrender hearing. He found Dykens in violation of the term of his probation and sentenced him to two years in a house of correction on the charge of assault and battery by means of a dangerous weapon, and an additional two years on the charge of possessing a burglarious implement, to be served from and after that. The judge also terminated Dykens's probation on the remaining convictions.

         On October 11, 2013, Dykens moved to vacate two of his convictions of attempted armed burglary and his conviction of possessing a burglarious tool or implement pursuant to rule 30 (a). In his motion, Dykens asserted that the convictions of attempted burglary were duplicative, and should therefore be vacated and dismissed. He also argued that the rock he used to break the sliding door was not a burglarious instrument within the meaning of G. L. c. 266, § 49, and that his conviction under the statute should be vacated because the indictment was defective for failing to [45 N.E.3d 585] state a crime. On September 2, 2014, the judge denied the motion. Dykens timely appealed.

         2. Discussion.

         a. Collateral attack on guilty plea.

         Both the double jeopardy clause of the Fifth Amendment to the United States Constitution and Massachusetts common law prohibit the imposition of multiple punishments for the same offense. Commonwealth v. Rollins, 470 Mass. 66, 70, 18 N.E.3d 670 (2014), citing Marshall v. Commonwealth, 463 Mass. 529, 534, 977 N.E.2d 40 (2012). It is well settled in our jurisprudence that a " guilty plea will not preclude a court from hearing a constitutional claim that the State should not have tried the defendant at all." Commonwealth v. Negron, 462 Mass. 102, 104, 967 N.E.2d 99 (2012), quoting Commonwealth v. Clark, 379 Mass. 623, 626, 400 N.E.2d 251 (1980).

          A guilty plea is " an admission of the facts charged and is itself a conviction" (quotation and citation omitted), Negron, 462 Mass. at 105,

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and is properly challenged under rule 30 (a), which provides:

" 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."

Mass. R. Crim. P. 30 (a).

         In Negron, 462 Mass. at 106-107, we held that a defendant is not precluded from challenging his convictions (based on guilty pleas) on double jeopardy grounds where the defendant claims that the charges pleaded to are duplicative on their face and further expansion of the record or evidentiary findings are not required. Having concluded that the defendant could challenge the convictions as duplicative, the court went on to analyze whether they were in fact duplicative.[3] Id. at 108-111.

         The relevant convictions in Negron were for different crimes, armed assault in a dwelling and aggravated burglary, under different statutes, but arising out of the same criminal conduct. Id. at 103. The court analyzed the elements of the crimes and concluded that the former was not a lesser included offense of the latter. Id. at 109-111. ...

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