Commonwealth v. Sylvia (Lawyers Weekly No. 11-039-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13-P-1804 Appeals Court COMMONWEALTH vs. GERALD SYLVIA. No. 13-P-1804. Middlesex. October 7, 2015. – April 6, 2016. Present: Katzmann, Rubin, & Wolohojian, JJ. Practice, Criminal, Plea, Sentence, Indictment. Armed Assault in a Dwelling. Indictments found and returned in the Superior Court Department on December 5, 2006. A motion for release from unlawful confinement was considered by Edward P. Leibensperger, J., and a motion to revise and revoke sentence was considered by Diane M. Kottmyer, J. Michael A. Cioffi for the defendant. Crystal Lee Lyons, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. The defendant pleaded guilty in 2007 to charges stemming from an incident in which he stole twenty pounds of marijuana at gunpoint. The plea was tendered without an agreed sentencing recommendation. In this consolidated appeal from the order denying his motions to be released from unlawful restraint and to revise and revoke his sentence, the defendant contends: (1) his plea was not knowing and voluntary because, in violation of Mass.R.Crim.P. 12(c)(2)(A), as appearing in 442 Mass. 1513 (2004),[1] he was not informed he could withdraw his plea if the sentence exceeded the Commonwealth’s sentencing recommendation, (2) his plea was not knowing and voluntary because he had a “plea agreement” with the previous judge sitting in the session and that agreement was “breached,” (3) his plea was not intelligently made because there was insufficient evidence before the grand jury to support the charge of armed assault in a dwelling, and (4) being an armed career criminal is not a freestanding crime and; therefore, it was error to impose a separate sentence for it. We agree with the defendant that there is no freestanding crime of being an armed career criminal and, therefore, a separate sentence should not have been imposed. We accordingly remand the matter to the Superior Court to implement the procedure followed in Commonwealth v. Miranda, 441 Mass. 783 (2004), and for resentencing on the firearm charge. We otherwise affirm. Background. The evidence before the grand jury showed the following. Anthony Theriault agreed to sell twenty pounds of marijuana to Jemail Morris. When Theriault arrived at the designated meeting spot, Morris was not alone. Instead, Morris was accompanied by the defendant, whom Morris introduced as supplying the purchase money. After overcoming his initial surprise and hesitation, Theriault agreed to […]