Commonwealth v. Rivas (Lawyers Weekly No. 10-154-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11268 COMMONWEALTH vs. ANGEL RIVAS. Hampden. April 1, 2013. ‑ August 9, 2013. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Firearms. Practice, Criminal, Duplicative convictions, Sentence. Due Process of Law, Sentence. Search and Seizure, Probable cause. Probable Cause. Evidence, Prior misconduct. Indictments found and returned in the Superior Court Department on March 2, 2010. A pretrial motion to suppress was heard by C. Brian McDonald, J., and the cases were tried before him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Susan E. Taylor for the defendant. Bethany C. Lynch, Assistant District Attorney, for the Commonwealth. DUFFLY, J. We consider in this case whether, when a defendant is convicted of duplicative offenses, the lesser included offense must be vacated, even when it carries a higher penalty than the greater offense. The defendant was convicted by a Superior Court jury of four charges of possession of firearms and ammunition. The Commonwealth and the defendant agree that two of the four convictions on which sentence was imposed must be vacated because they are duplicative. The defendant, however, argues that the two convictions on lesser included offenses should be vacated, even though they carry higher penalties because of statutory sentencing enhancements applicable to repeat offenders, whereas the Commonwealth contends that the convictions carrying lesser penalties should be vacated. In the alternative, the Commonwealth asks that the case be remanded to the Superior Court for resentencing. Because two of the sets of convictions and their related sentences are duplicative, constitutional and common-law principles require that two of the convictions and sentences be vacated. Because a determination as to which convictions should be vacated ordinarily rests in the sound discretion of the trial judge, we remand the matter to the Superior Court so that a judge of that court may decide, in the exercise of that discretion, which conviction in each set of paired convictions should be vacated. See Commonwealth v. Letkowski, 83 Mass. App. Ct. 847, 858-859 (2013); Commonwealth v. Johnson, 75 Mass. App. Ct. 903, 906 (2009). The defendant also challenges the lawfulness of the vehicle stop during which the firearm was seized, and the introduction at trial of testimony indicating that the police were conducting narcotics surveillance […]