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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]
Commonwealth v. Sylvia (Lawyers Weekly No. 11-042-15)
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-364 Appeals Court COMMONWEALTH vs. MICHAEL SYLVIA. No. 14-P-364. Bristol. January 9, 2015. – May 5, 2015. Present: Katzmann, Sullivan, & Blake, JJ. Arrest. Resisting Arrest. Practice, Criminal, Required finding. Indictment found and returned in the Superior Court Department on October 26, 2012. The case was tried before Robert J. Kane, J. Thomas C. Foley for the defendant. Corey T. Mastin, Assistant District Attorney, for the Commonwealth. KATZMANN, J. Having been convicted by a Superior Court jury of resisting arrest, the defendant appeals. He contends that the evidence was insufficient to support a conviction under the second prong of the resisting arrest statute, “using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” G. L. c. 268, § 32B(a)(2), inserted by St. 1995, c. 276. We affirm. Background. Under the familiar standard, on appeal the evidence is viewed in the light most favorable to the Commonwealth to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (citation omitted). Here, the analysis begins when Officer Kenneth Mendes advised the defendant that he was subject to arrest, and continues through the defendant’s flight and physical resistance to the officer’s efforts to place the defendant into physical custody. The officer first made contact with the defendant, for whom he had an arrest warrant, when, while patrolling in a cruiser with his partner in a high crime area, he noticed the defendant walking on a New Bedford street shortly before 2 A.M. The officer exited the cruiser and told the defendant that he had lawful authority to place him under arrest. The defendant, saying “no” and shaking his head in a manner understood by the officer to mean “no,” fled on foot. The officer observed the defendant continuously hold the waistband of his pants with one hand as he fled. Seeking to immobilize the defendant, the officer, while chasing him, deployed his “Taser”[1] to no effect. Eventually, the officer was able to grab onto the defendant’s shoulder and jacket, but the defendant was able to turn and shuck the jacket. The foot pursuit continued, as the defendant maintained his hold on the waistband of his pants, through a parking lot and […]