Commonwealth v. Armstrong (Lawyers Weekly No. 11-191-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-1538 Appeals Court COMMONWEALTH vs. EDWARD ARMSTRONG. No. 14-P-1538. Middlesex. November 6, 2015. – December 18, 2015. Present: Milkey, Carhart, & Massing, JJ. Armed Home Invasion. Practice, Criminal, Plea, New trial. Statute, Construction. Words, “Remains.” Indictment found and returned in the Superior Court Department on May 16, 2006. A motion for a new trial, filed on June 5, 2014, was considered by Kathe M. Tuttman, J. Judith Ellen Pietras for the defendant. Erin J. Anderson, Assistant District Attorney, for the Commonwealth. MASSING, J. The defendant, Edward Armstrong, appeals from the order denying his motion for new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The defendant alleged in his motion that his guilty plea eight years earlier to a charge of armed home invasion was invalid for lack of a factual basis, contrary to the requirements of Commonwealth v. Hart, 467 Mass. 322, 325-326 (2014), and Mass.R.Crim.P. 12(c)(5)(A), as appearing in 442 Mass. 1511 (2004). Specifically, he claimed that the plea colloquy failed to establish a factual basis for one of the elements of the crime of armed home invasion: that having entered an empty dwelling, he “remain[ed] in such dwelling place knowing or having reason to know that one or more persons are present.” G. L. c. 265, § 18C, inserted by St. 1993, c. 333. A Superior Court judge (motion judge) denied the motion without a hearing. Discerning no abuse of discretion or other error of law, see Commonwealth v. Kirwan, 448 Mass. 304, 314 (2007), we affirm. Background. On September 27, 2006, the defendant pleaded guilty to a five-count indictment charging him with, among other things, armed home invasion. At the same time, he pleaded guilty to three counts in two 2005 indictments arising out of two prior incidents. With respect to one of the prior incidents, the plea judge sentenced the defendant to a State prison term of five to six years on a conviction of assault and battery by means of a dangerous weapon (ABDW), imposed on a “forthwith” basis. G. L. c. 279, § 27. The judge imposed State prison sentences of four to five years with respect to two of the convictions associated with the 2006 armed home invasion (assault by means of a dangerous weapon and possession of a firearm without a license), these sentences to run concurrently with […]