Commonwealth v. Cumming (Lawyers Weekly No. 10-176-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11248 COMMONWEALTH vs. RICHARD H. CUMMING. Worcester. March 5, 2013. ‑ September 27, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Constitutional Law, Double jeopardy, Sentence, Parole. Due Process of Law, Sentence, Parole. Practice, Criminal, Double jeopardy, Sentence, Parole. Parole. Indictments found and returned in the Superior Court Department on March 16, 2001. A motion to correct sentence, filed on September 1, 2010, was heard by Richard T. Tucker, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. David M. Skeels, Committee for Public Counsel Services, for the defendant. Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth. CORDY, J. In the present appeal, we consider two double jeopardy challenges to a Superior Court judge’s resentencing order following the judge’s allowance of the defendant’s motion to correct his sentences by vacating the requirement of community parole supervision for life (CPSL) pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). The CPSL requirement had been illegally imposed years earlier as a component of the defendant’s original sentences,[1] which also included concurrent periods of incarceration on ten separate indictments. We conclude that where, as here, the imposition of CPSL was part of an interdependent sentencing scheme, the judge had the authority to vacate and restructure the entire scheme, converting two of the concurrent sentences of incarceration into probationary terms, so as to effectuate the intent of the original sentencing judge. However, because an increase in the aggregate punishment would subject the defendant to double jeopardy, we also conclude that the maximum period of incarceration to which the defendant may be subject for violating his probationary term is the period of time between the defendant’s resentencing on October 22, 2010, and the maximum period of confinement under the concurrent sentences originally imposed on the indictments on which he was resentenced to probation. Background. On January 29, 2002, the defendant, Richard H. Cumming, was convicted on four indictments charging rape of a child, G. L. c. 265, § 23; four indictments charging indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B; and two indictments charging indecent assault and battery on a child over the age of fourteen, G. L. c. 265, […]