Commonwealth v. Dykens (Lawyers Weekly No. 10-021-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11879 COMMONWEALTH vs. KENNETH DYKENS. Middlesex. October 5, 2015. – February 17, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Attempt. Burglary. Burglarious Implements. Practice, Criminal, Plea, Postconviction relief, Duplicative convictions, Double jeopardy, Indictment. Indictments found and returned in the Superior Court Department on March 31, 2005. A motion to withdraw a plea and vacate convictions, filed on October 11, 2013, was heard by Peter M. Lauriat, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Timothy St. Lawrence for the defendant. Hallie White Speight, Assistant District Attorney, for the Commonwealth. CORDY, J. This case is before us following the denial by a Superior Court judge of Kenneth Dykens’s motion to vacate several convictions resulting from his guilty pleas in connection with a February, 2005, arrest for attempted burglary and other offenses. See Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). Specifically, he seeks to vacate two of his three convictions of attempted unarmed burglary in violation of G. L. c. 274, § 6, contending they are duplicative of his conviction on the third, and thus barred under principles of double jeopardy. He also seeks to vacate his conviction of possession of a burglarious tool or implement (a rock) in violation of G. L. c. 266, § 49, on the ground that the indictment failed to state a crime, and the Superior Court therefore lacked jurisdiction to accept a guilty plea and impose a sentence on it. We transferred Dykens’s appeal to this court on our own motion to decide whether, where a defendant has pleaded guilty to multiple counts of attempted unarmed burglary, he may subsequently challenge his guilty pleas pursuant to Mass. R. Crim. P. 30 (a), on double jeopardy grounds or whether he has waived any such claim by pleading guilty; and whether, where a defendant over the course of a single late evening and early morning unsuccessfully tried to break into a home through three different access points, he may be charged with multiple counts of attempted unarmed burglary pursuant to G. L. c. 274, § 6, or whether those acts constitute a single continuous course of conduct rendering conviction on multiple counts duplicative. We conclude that although Dykens the defendant may bring his […]