Heard: February 5, 2018.
received and sworn to in the West Roxbury Division of the
Boston Municipal Court Department on September 8, 2015.
case was tried before Myong J. Joun, J., and a
motion to revise or revoke an illegal sentence was heard by
B. Lewis, Assistant District Attorney, for the Commonwealth.
J. Topazio for the defendant.
Present: Green, C.J., Henry, & Singh, JJ.
jury trial in the District Court, the defendant was convicted
of assault and battery on a pregnant person. Due to
continuances for various reasons, the defendant was not
sentenced for over six months after his conviction. The judge
ultimately sentenced the defendant to three months in the
house of correction, suspended for six months (during which
time the defendant would be on probation), and ordered the
sentence imposed nunc pro tunc to the date of the
defendant's conviction. The result was that the defendant
was discharged from probation without ever having been placed
on probation. The Commonwealth filed a timely motion to
revise and revoke the defendant's sentence, which was
denied. This appeal followed. For the reasons set forth
below, we conclude that the nunc pro tunc probationary
sentence was not a lawful sentence. We vacate the sentence
and remand for resentencing.
September of 2015, a complaint issued against the defendant
for assault and battery on a pregnant person (his wife), and
intimidation of a witness. During the pendency of the
proceedings, the defendant was free on $500 bail and the
condition that he not abuse his wife. The defendant's
wife did not testify at trial, though her statements were
admitted through a 911 recording introduced by the
Commonwealth. After a two-day jury trial, on April 13, 2016,
the defendant was convicted of assault and battery on a
pregnant person, and acquitted of intimidation of a witness.
The Commonwealth moved for sentencing, and requested that the
defendant be sentenced to a three-year term of probation,
with conditions including that he complete a certified
batterer's intervention program (CBIP). The defendant
requested that his conviction be filed for three years, to
avoid potential immigration consequences.
judge asked the parties to prepare sentencing memoranda,
which were submitted, and the parties reconvened on July 27,
2016. At that time, the judge requested a further memorandum
from the Commonwealth specifically addressing the
defendant's proposed disposition. In its response, the
Commonwealth reasserted its recommendation and objected to
placing the defendant's conviction on file, noting that
such a disposition could not be imposed without the
Commonwealth's consent. The judge ultimately set a
sentencing date of November 1, 2016, and on that date
sentenced the defendant to three months in the house of
correction, suspended for six months, nunc pro tunc to April
13, 2016. In the same order, the judge retroactively
discharged the defendant from probation, effective October
Commonwealth filed a motion to revise and revoke the sentence
that was dated December 23, 2016, and the judge denied the
motion in a memorandum dated January 10, 2017. The Commonwealth
then appealed from the order denying its motion to this
Commonwealth argues that the nunc pro tunc provision of the
defendant's sentence transformed it into "an
illusory sentence, " and rendered it
illegal. "An illegal sentence is one that is
not permitted by law for the offense committed."
Commonwealth v. McGuinness, 421 Mass. 472, 475
(1995). In reviewing a sentence for illegality, "[w]e
begin with the proposition that 'a judge has considerable
latitude within the framework of the applicable statute to
determine the appropriate individualized sentence.'"