Commonwealth v. Rose (Lawyers Weekly No. 11-149-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13‑P‑347 Appeals Court COMMONWEALTH vs. MICHAEL D. ROSE. No. 13‑P‑347. December 24, 2013. Controlled Substances. Conspiracy. Constitutional Law, Double jeopardy. Practice, Criminal, Double jeopardy, Duplicative convictions. The defendant appeals from an order denying his motion seeking to vacate his conviction on a charge of conspiracy to violate drug laws, entered as part of a plea agreement, based on a claim that it is duplicative of his conviction on a charge of distribution of cocaine. We affirm the order, as the two charges are neither legally nor, on the recitation of facts supporting the guilty pleas in the present case, factually duplicative. Duplicative convictions violate the double jeopardy clause of the Fifth Amendment to the United States Constitution. “The traditional rule in Massachusetts, as embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871) (Morey), and its progeny, is that ‘a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.’” Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting from Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). “It is well settled that, on its face, conspiracy is a separate and distinct crime from the substantive offense.” Commonwealth v. D’Amour, 428 Mass. 725, 747 (1999). That is because “[t]he conspiracy charge require[s] proof of an agreement and the substantive charge [does] not,” Commonwealth v. DeCillis, 41 Mass. App. Ct. 312, 314 (1996), quoting from Commonwealth v. Cannavo, 16 Mass. App. Ct. 977, 978 (1983), but the conspiracy charge does not require proof of completion of the substantive crime. A conspiracy charge nonetheless may be duplicative of the substantive offense if in the circumstances of a particular case both are in actuality the same offense. See Commonwealth v. D’Amour, 428 Mass. at 747-749 (“entire crime of conspiracy is subsumed by the crime of accessory before the fact to murder on a hiring theory”). The defendant contends that the present case presents such circumstances, since (he asserts) the recitation of facts furnished by the Commonwealth in support of his guilty pleas described no agreement other than as implied by the defendant’s participation in the sale of cocaine that was the basis for the distribution charge. In summary form, those facts include […]