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Commonwealth v. Sylvia

Appeals Court of Massachusetts, Middlesex

April 6, 2016

Gerald Sylvia

         Argued October 7, 2015.

          Indictments found and returned in the Superior Court Department on December 5, 2006.

         A motion for release from unlawful confinement was considered by Edward P. Leibensperger, J., and a motion to revise and revoke sentence was considered by Diane M. Kottmyer, J.

         Michael A. Cioffi for the defendant.

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          Crystal Lee Lyons, Assistant District Attorney, for the Commonwealth.

         Present: Katzmann, Rubin, & Wolohojian, JJ.


          [47 N.E.3d 695] Wolohojian, J.

          The defendant pleaded guilty in 2007 to charges stemming from an incident in which he stole twenty pounds of marijuana at gunpoint. The plea was tendered without an agreed sentencing recommendation. In this consolidated appeal from the order denying his motions to be released from unlawful restraint and to revise and revoke his sentence, the defendant contends: (1) his plea was not knowing and voluntary because, in violation of Mass.R.Crim.P. 12(c)(2)(A), as appearing in 442 Mass. 1513 (2004),[1] he was not informed he could withdraw his plea if the sentence exceeded the Commonwealth's sentencing recommendation, (2) his plea was not knowing and voluntary because he had a " plea agreement" with the previous judge sitting in the session and that agreement was " breached," (3) his plea was not intelligently made because there was insufficient evidence before the grand jury to support the charge of armed assault in a dwelling, and (4) being an armed career criminal is not a freestanding crime and; therefore, it was error to impose a separate sentence for it. We agree with the defendant that there is no freestanding crime of being an armed career criminal and, therefore, a separate sentence should not have been imposed. We accordingly remand the matter to the Superior Court to implement the procedure followed in Commonwealth v. Miranda, 441 Mass. 783, 809 N.E.2d 487 (2004), and for resentencing on the firearm charge. We otherwise affirm.


          The evidence before the grand jury showed the following. Anthony Theriault agreed to sell twenty pounds of marijuana to Jemail Morris. When Theriault arrived at the designated meeting spot, Morris was not alone. Instead, Morris was accompanied by the defendant, whom Morris introduced as supplying the purchase money. After overcoming his initial surprise and hesitation, Theriault agreed to proceed with the transaction. All three men got into a car driven by the defendant and went to Theriault's apartment.

         Once there, Theriault placed two large green garbage bags of marijuana on the kitchen table for Morris's inspection. Meanwhile, the defendant drew a gun and, looking Theriault in the eye,

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stated, " You know what this is. Let's just get this over with. Get down on the floor." Morris put on blue rubber gloves. Fearing for his life, Theriault begged the men to take the marijuana without harming him. In the subsequent scuffle, Theriault was able to escape and call 911, providing a detailed physical description of the two men, and a description of their car and its license plate number.

          [47 N.E.3d 696] Police located the car almost immediately and gave chase. The defendant was driving. When the car reached an impasse, the defendant and Morris fled on foot. The defendant removed a pair of blue rubber gloves and pulled a firearm from his waist as he got out of the car. A Jennings .380 caliber semiautomatic pistol was later found in the driver's area of the car. Two large green garbage bags containing twenty pounds of marijuana were on the back seat. A backpack the defendant tossed as he ran contained duct tape, blue rubber gloves, and garbage bags. When searched at the station, six .38 special caliber bullets were found on the defendant's person. Theriault identified the defendant and Morris as the perpetrators from a photographic array.

         On these facts, a grand jury returned five indictments charging the defendant with armed robbery, G. L. c. 265, § 17, armed assault in a dwelling, G. L. c. 265, § 18A, possession of a firearm, G. L. c. 269, § 10( a ), possession of marijuana with the intent to distribute, G. L. c. 94C, § 32C( a ), and being an armed career criminal, G. L. c. 269, § 10G( a ). The latter was the subject of a separate indictment.

         From the docket sheet, it appears the case was actively litigated thereafter. More specifically, the Commonwealth provided discovery and the defendant filed various discovery motions and a motion to suppress. At some point on or before November 29, 2007, the defendant and Morris advised the judge that they intended to change their pleas. On that date, the defendant filed a sentencing memorandum. Also on that date, the judge (who was then sitting in the session to which the case was assigned) held a status conference " to determine whether one or both of the defendants wish to change their pleas." Although both the defendant and Morris stated that they were prepared to plead guilty, Morris requested a delay in sentencing based on family circumstances. In addition, the Commonwealth, having learned only that day about the defendants' change in position, requested a delay in order to obtain a witness impact statement. The defendant's attorney suggested that the defendant and Morris be kept on the

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same schedule. The judge allowed a continuance for both defendants to December 18, 2007, noting that if the pleas were not changed on that date the case would proceed to trial.

         The following exchange then occurred:

The court: " All right, I just want to be sure I keep a record of what I said I would do and my memory is what I indicated I would treat this not as a home invasion but as an armed robbery and then I looked at the guidelines and I think I indicated that I would go maybe one year under the guidelines that's my memory and I have my notes here somewhere."
The prosecutor: " I wrote down with regards to Mr. Sylvia, you said 6 to 9, Judge, and with regards to Mr. Morris, you said 8 to 12, and that is a departure slightly from the guidelines based ...

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