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Commonwealth v. Asase

Appeals Court of Massachusetts, Suffolk

June 7, 2018

COMMONWEALTH
v.
COURAGE K. ASASE.

          Heard: February 5, 2018.

         Complaint received and sworn to in the West Roxbury Division of the Boston Municipal Court Department on September 8, 2015.

         The case was tried before Myong J. Joun, J., and a motion to revise or revoke an illegal sentence was heard by him.

          Paul B. Lewis, Assistant District Attorney, for the Commonwealth.

          Steven J. Topazio for the defendant.

          Present: Green, C.J., Henry, & Singh, JJ.

          SINGH, J.

         After 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.

         Background.

         In 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.

         The 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.[1] 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 13, 2016.

         The 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.[2] The Commonwealth then appealed from the order denying its motion to this court.

         Discussion.

         The Commonwealth argues that the nunc pro tunc provision of the defendant's sentence transformed it into "an illusory sentence, " and rendered it illegal.[3] "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.'" C ...


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