COMMONWEALTH v. GOUSE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On September 25, 2009, a Superior Court jury convicted the defendant on indictments charging assault and battery by means of a dangerous weapon (shod foot), in violation of G. L. c. 265, § 15A (b), assault and battery, in violation of G. L. c. 265, § 13A (a), and unlawful possession of a firearm outside of his residence or place of business, in violation of G. L. c. 269, § 10 (a).² The indictment charging unlawful possession of a firearm further alleged that the defendant previously had been convicted of three violent crimes as defined by G. L. c. 140, § 121, thus subjecting him to enhanced sentencing as an armed career criminal under G. L. c. 269, § 10G (c) (ACCA). Two of the three alleged predicate offenses were simple assault and battery, G. L. c. 265, § 13A (a), and one was assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b). After the jury returned their verdicts, a second trial on the subsequent offender portion of the firearm charge commenced. The same jury found that the defendant had committed each of the three predicate offenses and, consequently, found him guilty.

About three years later, the defendant filed a motion to correct an illegal sentence under Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), claiming that the evidence presented in support of his two prior convictions of assault and battery failed to establish that he had committed a violent crime as required by the ACCA. See Commonwealth v. Eberhart, 461 Mass. 809, 814-815 (2012). The motion was allowed and the defendant's sentence based on those two predicate offenses was vacated. Thereafter, a new sentence based on one predicate offense (assault and battery by means of a dangerous weapon) was imposed.

Approximately six years later, the defendant filed a second rule 30 (a) motion claiming that the Commonwealth had failed to prove that his conviction of assault and battery by means of a dangerous weapon was a violent crime. Specifically, he argued that because the offense of assault and battery by means of a dangerous weapon encompasses both intentional and reckless conduct, the judge should have applied a “modified categorical approach” and required the Commonwealth to present evidence to prove that the defendant's conviction was based on intentional conduct. The motion judge, who was not the trial judge, rejected the defendant's claim in a written memorandum of decision and order without a hearing.³

We review the denial of a rule 30 (a) motion for an abuse of discretion. Commonwealth v. Perez, 477 Mass. 677, 681-682 (2017). Here, the motion judge correctly concluded that the defendant's claim is foreclosed by our decision in Commonwealth v. Widener, 91 Mass. App. Ct. 696, 702-703 (2017).⁴ ,  ⁵ In that case, we addressed a similar argument and concluded that the offense of assault and battery by means of a dangerous weapon is a violent crime within the meaning of G. L. c. 140, § 121, without regard to whether the underlying conduct was intentional or reckless. Widener, supra at 703. Thus, as the motion judge observed, “[t]he jury only had to determine whether the Commonwealth had proven beyond a reasonable doubt that the defendant had, in fact, been previously convicted of assault and battery by means of a dangerous weapon.”⁵

With regard to the defendant's conviction of assault and battery by means of a dangerous weapon, the Commonwealth called Fall River police Officer Brian O'Hearn, who investigated the incident and requested a warrant for the defendant's arrest. Officer O'Hearn testified that he interviewed the victim, and that she was bleeding from the mouth when they spoke. Officer O'Hearn did not arrest the defendant and could not identify him in court. However, the Commonwealth also called the defendant's probation officer, John Gonsalves, who did identify the defendant and testified that the defendant had been convicted of assault and battery by means of a dangerous weapon on May 10, 1998, and received a one-year sentence “to the house of correction suspended in care of probation for the period of one year until May 10th of 1999.” Gonsalves's testimony was corroborated by information contained within the criminal complaint and a certified copy of the corresponding docket. This evidence was sufficient to prove that the defendant had committed a qualifying predicate offense, namely assault and battery by means of a dangerous weapon. Accordingly, the judge properly denied the defendant's motion.⁷

Order denying second motion to correct illegal sentence affirmed.

FOOTNOTES

2.   The jury also convicted the defendant of unauthorized use of a motor vehicle, G. L. c. 90, § 24 (2) (a), and acquitted him of possession of ammunition without a firearm identification card, G. L. c. 269, § 10 (h). Another indictment charging the defendant with intimidation of a witness was dismissed prior to trial, and one charging possession of a firearm with a defaced serial number was nol prossed.

3.   We discern no abuse of discretion in the judge's denial of the defendant's request for a hearing.

4.   A petition for further appellate review of our decision in Widener was denied. See Commonwealth v. Widener, 478 Mass. 1102 (2017).

5.   The defendant invites us to overrule our holding in Widener. We decline to do so.

6.   To the extent the defendant relies on Commonwealth v. Wentworth, 482 Mass. 664 (2019), for support, that reliance is misplaced. The predicate offense in question there was domestic assault and battery for which the modified categorical approach is the appropriate analytical framework. See id. at 672-673. Nothing in Wentworth requires the application of that approach where, as here, the predicate offense is assault and battery by means of a dangerous weapon.

7.   Given our conclusion, the defendant's remaining two arguments, (1) that the judge erred in instructing the jury that the crime of assault and battery by means of a dangerous weapon is a violent crime and (2) that the principle of double jeopardy requires that the sentence be vacated, require no discussion. Neither claim has merit.