COMMONWEALTH v. SABREE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, G. Saif Sabree,² appeals from the denial of several postconviction motions. He maintains that (1) his convictions violate the prohibition against double jeopardy, (2) he is entitled to retroactive application of a 1980 amendment to the rape statute, which sets forth two types of rape -- nonaggravated and aggravated, (3) the Appellate Division of the Superior Court lacked authority to make his conviction of rape the anchor offense, (4) he is entitled to discovery, pursuant to Mass. R. Crim. P. 30 (c) (4), as appearing in 435 Mass. 1501 (2001), regarding the materials considered by the Appellate Division in restructuring his sentence, and (5) his trial and appellate counsel provided ineffective assistance. We affirm.

Background. In June 1974, following a jury trial in Superior Court, the defendant was convicted of assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A), armed robbery (G. L. c. 265, § 17), rape (G. L. c. 265, § 22), and armed assault in a dwelling (G. L. c. 265, § 18A). Briefly, the defendant and two companions forced their way into a Boston apartment, forcibly raped the woman who lived there, and stole several items of her personal property. At least one of them was armed with a gun, and one of them threatened the victim with a knife. See Commonwealth v. Nicholson, 4 Mass. App. Ct. 87, 88-89, 341 N.E.2d 688 (1976).³

The trial judge sentenced the defendant to concurrent life terms for his convictions of armed robbery and armed assault in a dwelling, a consecutive life term for his conviction of rape, and (with the defendant's consent) placed the assault and battery by means of a dangerous weapon conviction on file. Shortly thereafter, in September 1974, the Appellate Division of the Superior Court restructured and modified the sentences, making the life term for the rape conviction the anchor sentence and reducing the armed robbery and armed assault in a dwelling sentences from concurrent life terms to concurrent terms of six to ten years from and after the rape sentence.

This is the defendant's seventh appeal. See Nicholson, 4 Mass. App. Ct. 87, 341 N.E.2d 688 (direct appeal); Commonwealth v. Mitchell, 9 Mass. App. Ct. 892, 402 N.E.2d 1392 (1980) (appeal from denial of motion for new trial); Commonwealth v. Mitchell, 17 Mass. App. Ct. 1112, 460 N.E.2d 1072 (1984) (appeal from denial of second “amended” motion for new trial); Sabree v. Commonwealth, 432 Mass. 1003, 732 N.E.2d 275 (2000) (appeal from single justice denial of petition for extraordinary relief pursuant to G. L. c. 211, § 3); Commonwealth v. Sabree, 73 Mass. App. Ct. 1105, 896 N.E.2d 657 (2008) (appeal from denial of third motion for new trial); Sabree v. Commonwealth, 479 Mass. 1006, 91 N.E.3d 1124 (2018) (appeal from single justice denial of second petition pursuant to G. L. c. 211, § 3). The present appeal is from the orders entered in September 2018 denying three postconviction motions: (1) an August 2015 motion for release from unlawful restraint, pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001);⁴ (2) a May 2016 motion for release from unlawful restraint pursuant to G. L. c. 211, § 3, Mass. R. Crim. P. 9 (a) (1), 378 Mass. 859 (1979), and rule 30 (a); and (3) an August 2018 motion for postconviction discovery pursuant to Mass. R. Crim. P. 30 (c) (4).

Discussion. Standard of review. We review the denial of a motion brought under rule 30 (a) for an abuse of discretion. See Commonwealth v. Wimer, 480 Mass. 1, 4, 99 N.E.3d 778 (2018). We review legal issues de novo. Id.

1. Double jeopardy. The defendant first argues that the imposition of consecutive sentences for his convictions of rape, armed robbery and armed assault in a dwelling violates the prohibition against double jeopardy under the “same evidence” rule because the crimes arose from the same course of conduct.⁵ The “same evidence” rule, however, applies only to lesser included offenses ⁶ or multiple charges of the same offense.⁷ See Commonwealth v. Rodriguez, 476 Mass. 367, 371, 68 N.E.3d 635 (2017). Here, the question whether the defendant's convictions violate the prohibition against double jeopardy is governed by the “same elements” rule. Under that rule, “[a]s long as each offense requires proof of an additional element that the other does not, neither ․ is a lesser-included offense ․, and convictions on both [do not violate double jeopardy]” (quotation and citation omitted). Commonwealth v. Vick, 454 Mass. 418, 431, 910 N.E.2d 339 (2009).

Applying the “same elements” rule to the defendant's convictions, there was no violation of the prohibition against double jeopardy because each crime contains an element the others do not: rape (under the then-existing statute) required “carnal[ ] knowl[edge]”;⁸ armed robbery required taking of property;⁹ and armed assault in a dwelling required an entry into a dwelling.¹⁰

2. Retroactivity of amendments to rape statute. The defendant next asserts that he is entitled to a reduction of his sentence for the rape conviction because in 1980, the Legislature amended the rape statute by, inter alia, reducing the maximum sentence for nonaggravated rape from life to twenty years in prison, and defining the crime of aggravated rape. See G. L. c. 265, § 22, as amended by St. 1980, c. 459, § 6. The defendant was convicted and sentenced several years before this amendment. He is not entitled to retroactive application of this amendment because, “[a]s a general rule of statutory construction, a newly enacted statute is presumptively prospective, and [t]he repeal of a statute shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect”¹¹ (quotation and citation omitted). Commonwealth v. Didas, 471 Mass. 1, 5, 26 N.E.3d 732 (2015).

3. Authority of Appellate Division to restructure sentences. To the extent the defendant argues that the Appellate Division of the Superior Court lacked authority to restructure and modify his sentences, the argument is unavailing. See G. L. c. 278, § 28B (authorizing Appellate Division “to amend the judgment by ordering substituted therefor a different appropriate sentence or sentences or any other disposition of the case which could have been made at the time of the imposition of the sentence or sentences under review”). Moreover, the modification benefitted the defendant. He was originally sentenced to two consecutive terms of life in prison; the Appellate Division reduced one of the life sentences to a term of six to ten years, making him eligible for parole some ten years earlier than he would have been otherwise. Compare G. L. c. 127, § 133A, as amended by St. 1973, c. 278 (prisoner serving life sentence eligible for parole after fifteen years) with G. L. c. 127, § 133, as amended by St. 1971, c. 464 (prisoner serving term of years eligible for parole after serving two thirds of minimum term).¹²

4. Discovery. The defendant contends that the judge abused her discretion by denying his motion for materials “used by the Appellate Division ․ to decide on the defendant's sentencing appeal and actions taken by the Appellate Division.” The defendant, however, was not entitled to postconviction discovery because he failed to establish a prima facie case for relief from the Appellate Division's decision. See Commonwealth v. Barros, 460 Mass. 1015, 1016, 955 N.E.2d 295 (2011) (where sentence is within permissible range of sentences set by statute for given offense, there is no authority to review otherwise lawful sentence of Appellate Division).

5. Ineffective assistance of counsel. Because each of the arguments raised by the defendant in his postconviction motions lacks merit, the failure of his counsel to raise them does not amount to ineffective assistance.¹³ See Commonwealth v. Randolph, 438 Mass. 290, 296, 780 N.E.2d 58 (2002).

Postjudgment orders entered September 21 and 26, 2018, affirmed.

FOOTNOTES

2.   Also known as Gary Mitchell.

3.   Steven Nicholson is the name of one of the codefendants.

4.   The motion had been denied in a margin order in 2015, but the order was not entered on the docket.

5.   The defendant mistakenly challenges his convictions as “duplicative” under Mass. R. Crim. P. 9. Rule 9 allows charges based on the same criminal conduct to be joined for trial. See rule 9 (a) (3) (“If a defendant is charged with two or more related offenses, either party may move for joinder of such charges. The trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice”).

6.   The defendant asserts that armed robbery is a lesser included offense of aggravated rape. However, he was not convicted of aggravated rape, a crime that did not exist until 1980. See G. L. c. 265, § 22 (a), inserted by St. 1980, c. 459, § 6.

7.   The defendant erroneously relies on cases holding that a conviction for a predicate felony is duplicative of a conviction for felony murder. See Commonwealth v. Carter, 475 Mass. 512, 513-514, 58 N.E.3d 318 (2016). The defendant was not convicted of felony murder.

8.   G. L. c. 265, § 22, as amended by R.L. 1902, c. 207, § 22.

9.   G. L. c. 265, § 17, as amended by St. 1952, c. 406, § 1.

10.   G. L. c. 265, § 18A, as amended by St. 1969, c. 473.

11.   Unlike Commonwealth v. Vaughn, 329 Mass. 333, 338-339, 108 N.E.2d 559 (1952), the change in the law here occurred long after the defendant was convicted.

12.   There is no merit to the defendant's assertion that the trial court lacked subject matter jurisdiction.

13.   To the extent that any arguments are not expressly addressed, “they ‘have not been overlooked. We find nothing in them that requires discussion.’ ” Commonwealth v. Brown, 479 Mass. 163, 168 n.3, 92 N.E.3d 1189 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78, 123 N.E.2d 368 (1954).