Commonwealth v. Rivas (Lawyers Weekly No. 10-154-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11268 COMMONWEALTH vs. ANGEL RIVAS. Hampden. April 1, 2013. ‑ August 9, 2013. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Firearms. Practice, Criminal, Duplicative convictions, Sentence. Due Process of Law, Sentence. Search and Seizure, Probable cause. Probable Cause. Evidence, Prior misconduct. Indictments found and returned in the Superior Court Department on March 2, 2010. A pretrial motion to suppress was heard by C. Brian McDonald, J., and the cases were tried before him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Susan E. Taylor for the defendant. Bethany C. Lynch, Assistant District Attorney, for the Commonwealth. DUFFLY, J. We consider in this case whether, when a defendant is convicted of duplicative offenses, the lesser included offense must be vacated, even when it carries a higher penalty than the greater offense. The defendant was convicted by a Superior Court jury of four charges of possession of firearms and ammunition. The Commonwealth and the defendant agree that two of the four convictions on which sentence was imposed must be vacated because they are duplicative. The defendant, however, argues that the two convictions on lesser included offenses should be vacated, even though they carry higher penalties because of statutory sentencing enhancements applicable to repeat offenders, whereas the Commonwealth contends that the convictions carrying lesser penalties should be vacated. In the alternative, the Commonwealth asks that the case be remanded to the Superior Court for resentencing. Because two of the sets of convictions and their related sentences are duplicative, constitutional and common-law principles require that two of the convictions and sentences be vacated. Because a determination as to which convictions should be vacated ordinarily rests in the sound discretion of the trial judge, we remand the matter to the Superior Court so that a judge of that court may decide, in the exercise of that discretion, which conviction in each set of paired convictions should be vacated. See Commonwealth v. Letkowski, 83 Mass. App. Ct. 847, 858-859 (2013); Commonwealth v. Johnson, 75 Mass. App. Ct. 903, 906 (2009). The defendant also challenges the lawfulness of the vehicle stop during which the firearm was seized, and the introduction at trial of testimony indicating that the police were conducting narcotics surveillance […]
Rivas v. Chelsea Housing Authority (Lawyers Weekly No. 10-021-13)
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‑11090 ELIZABETH RIVAS vs. CHELSEA HOUSING AUTHORITY. Suffolk. October 2, 2012. ‑ February 8, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ. Housing Authority. Municipal Corporations, Housing authority. Administrative Law, Hearing, Regulations. Due Process of Law, Hearing, Housing, Vagueness of regulation. Housing. Civil action commenced in the Superior Court Department on November 2, 2009. The case was heard by Nancy S. Holtz, J., on motions for judgment on the pleadings. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Joshua N. Garick (Stephen J. Callahan with him) for the plaintiff. Thomas F. Feeney for the defendant. James M. McCreight, for Massachusetts Union of Public Housing Tenants, amicus curiae, submitted a brief. CORDY, J. Elizabeth Rivas has received housing assistance through the Massachusetts rental voucher program (voucher program) since 1998. The voucher program is a State-funded program that provides rental assistance to low-income tenants who lease apartments from private landlords. The voucher program participants contribute a percentage of their household net income toward rent, and the State pays the remainder of the rent directly to the landlord. The program is administered by the Department of Housing and Community Development (department)[1] through local housing authorities, and is governed by 760 Code Mass. Regs. §§ 49.00 (2012). Rivas rented an apartment in the city of Chelsea and received her voucher through the Chelsea Housing Authority (authority). Rivas’s voucher was considered a “project-based” voucher, meaning it could only be used to subsidize her rent at a particular housing unit: 12 Fourth Street, Apartment 4, Chelsea. See 760 Code Mass. Regs. § 49.02 (1998) (definition of project-based voucher); 760 Code Mass. Regs. § 49.06 (2000) (project-based voucher requirements). On July 9, 2009, Rivas received notice from the authority’s voucher program representative, Carmen Torres, that the authority was terminating her voucher, effective August 31, 2009, because she did not report “changes in family composition and in family’s income” within thirty days of the change, as required by the conditions of her voucher. The notice informed Rivas of her right to request a grievance hearing pursuant to 760 Code Mass. Regs. § 6.08(4)(a) (1998).[2] Specifically, the authority alleged that Rivas had failed to report to the authority that her mother, Ana Burgos, had begun to live with her […]