October 7, 2015.
Indictments found and returned in the Superior Court
Department on December 5, 2006.
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.
A. Cioffi for the defendant.
Crystal Lee Lyons, Assistant District Attorney, for the
Katzmann, Rubin, & Wolohojian, JJ.
N.E.3d 695] Wolohojian, J.
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), 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
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.
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
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.
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
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.
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
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
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
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 ...