Supreme Judicial Court of Massachusetts, Middlesex
October 5, 2015.
Indictments found and returned in the Superior Court
Department on March 31, 2005.
motion to withdraw a plea and vacate convictions, filed on
October 11, 2013, was heard by Peter M. Lauriat, J.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Timothy St. Lawrence for the defendant.
White Speight, Assistant District Attorney, for the
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ. Duffly, J. (dissenting, with whom Lenk and Hines,
N.E.3d 582] Cordy, J.
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.
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.
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.
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.
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
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.
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.
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 and one count of
possession of a burglarious instrument (a heavy rock), which
are at issue in this appeal. 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
October 17, 2005, Dykens pleaded guilty to the three counts
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.
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
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.
Collateral attack on guilty plea.
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).
guilty plea is " an admission of the facts charged and
is itself a conviction" (quotation and citation
omitted), Negron, 462 Mass. at 105,
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).
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. Id. at 108-111.
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