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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
                                                                   2


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.


     1
       We deal here with the version of rule 12 in effect at the
time of the plea in 2007, not with the current version of the
rule that took effect on May 11, 2015, as appearing in 470 Mass.
1501 (2015). Accordingly, all references to the text of rule 12
in this opinion are to the earlier version of the rule.
                                                                      3


    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 proceed with the

transaction.   All three men got into a car driven by the

defendant and went to Theriault's apartment.

    Once there, Theriault placed two large green garbage bags

of marijuana on the kitchen table for Morris's inspection.

Meanwhile, the defendant drew a gun and, looking Theriault in

the eye, stated, "You know what this is.    Let's just get this

over with.   Get down on the floor."    Morris put on blue rubber

gloves.   Fearing for his life, Theriault begged the men to take

the marijuana without harming him.     In the subsequent scuffle,

Theriault was able to escape and call 911, providing a detailed

physical description of the two men, and a description of their

car and its license plate number.

    Police located the car almost immediately and gave chase.

The defendant was driving.    When the car reached an impasse, the

defendant and Morris fled on foot.     The defendant removed a pair

of blue rubber gloves and pulled a firearm from his waist as he

got out of the car.   A Jennings .380 caliber semiautomatic
                                                                    4


pistol was later found in the driver's area of the car.    Two

large green garbage bags containing twenty pounds of marijuana

were on the back seat.    A backpack the defendant tossed as he

ran contained duct tape, blue rubber gloves, and garbage bags.

When searched at the station, six .38 special caliber bullets

were found on the defendant's person.    Theriault identified the

defendant and Morris as the perpetrators from a photographic

array.

    On these facts, a grand jury returned five indictments

charging the defendant with armed robbery, G. L. c. 265, § 17,

armed assault in a dwelling, G. L. c. 265, § 18A, possession of

a firearm, G. L. c. 269, § 10(a), possession of marijuana with

the intent to distribute, G. L. c. 94C, § 32C(a), and being an

armed career criminal, G. L. c. 269, § 10G(a).    The latter was

the subject of a separate indictment.

    From the docket sheet, it appears the case was actively

litigated thereafter.    More specifically, the Commonwealth

provided discovery and the defendant filed various discovery

motions and a motion to suppress.   At some point on or before

November 29, 2007, the defendant and Morris advised the judge

that they intended to change their pleas.    On that date, the

defendant filed a sentencing memorandum.    Also on that date, the

judge (who was then sitting in the session to which the case was

assigned) held a status conference "to determine whether one or
                                                                   5


both of the defendants wish to change their pleas."   Although

both the defendant and Morris stated that were prepared to plead

guilty, Morris requested a delay in sentencing based on family

circumstances.   In addition, the Commonwealth, having learned

only that day about the defendants' change in position,

requested a delay in order to obtain a witness impact statement.

The defendant's attorney suggested that the defendant and Morris

be kept on the same schedule.   The judge allowed a continuance

for both defendants to December 18, 2007, noting that if the

pleas were not changed on that date the case would proceed to

trial.

    The following exchange then occurred:

    The court: "All right, I just want to be sure I keep
    a record of what I said I would do and my memory is
    what I indicated I would treat this not as a home
    invasion but as an armed robbery and then I looked at
    the guidelines and I think I indicated that I would go
    maybe one year under the guidelines that's my memory
    and I have my notes here somewhere."

    The prosecutor: "I wrote down with regards to Mr.
    Sylvia, you said 6 to 9, Judge, and with regards to
    Mr. Morris, you said 8 to 12, and that is a departure
    slightly from the guidelines based on the reasons you
    just stated."

    The court: "All right.      Thank you for the sentencing
    memorandum."

    That judge did not retain jurisdiction.     Thus, although the

change of plea occurred as anticipated on December 18, 2007, it

occurred before a different judge (second judge), who was not
                                                                   6


informed by anyone of the previous judge's sentencing views.

The second judge appears only to have been told that there was

no agreement regarding the plea.

     We need not recite in their entirety the details of the

second judge's comprehensive plea colloquy; we state only those

aspects that bear on this appeal.   After noting that there was

no agreement regarding the plea, the following exchange

occurred.

     The court: "I will impose today, on the assumption that I
     accept the pleas, a conditional sentence. The conditional
     sentence means that this is not the final sentence. The
     final sentence will be determined after a sentencing
     hearing, at which, having received a sentencing memorandum
     from the Commonwealth, and such sentencing materials,
     including memoranda and/or letters of support, things of
     that kind, from the defendants, and a pre-sentence report
     for each defendant from the Probation Department, I will
     then proceed to a hearing. And at the hearing, I will also
     hear argument from Mr. Donnelly for the Commonwealth, and
     from Mr. Elikann on behalf of Mr. Sylvia, and Mr.
     Napolitano on behalf of Mr. Morris. Each of the defendants
     may, if he wishes -- he's not obliged to but if he wishes -
     - the defendant may address the Court as well."

          "Now, at no time will either the Government through
     Mr. Donnelly, either in writing or verbally; or the
     Probation Department in the pre-sentence report or any
     other way, tell me what the Government's recommendation is.
     The sentence that the Government would have recommended is,
     has been -- and I want confirmation of this -- written on a
     piece of paper, signed by Mr. Donnelly and by counsel, and
     placed in the envelope which has been sealed and marked as
     Exhibit A . . . .[2]"


     2
       The prosecutor had not in fact signed the recommendation;
however, after discussion, the defendants stated that this was
not an issue.
                                                                   7


         . . . .

    The court: "Now, after having heard the argument and
    considered the written materials, I will then announce what
    I believe to be an appropriate sentence. If that sentence
    requires no greater time committed than the sentence that
    Mr. Donnelly would have recommended -- that is to say the
    sentence that's written on the piece of paper in Exhibit A
    -- then that will be the sentence. If the sentence I
    propose exceeds Mr. Donnelly's recommendation, then I will
    either agree to reduce the sentence to the amount that Mr.
    Donnelly would have recommended; or I will say to the
    defendants, 'I'm sorry, but I am not going to reduce my
    sentence.' At that point, each defendant has an option:
    He may accept the sentence as I propose to impose it; or he
    may say, 'Well, under those circumstances, I want to
    withdraw my plea and go to trial.' And the plea will be
    withdrawn and we will set up a trial."

         "To put it in a brief way, what this procedure does is
    to assure the defendant that the defendant will be
    sentenced to no greater a sentence than what Mr. Donnelly
    would recommend, and it may be that his sentence would be
    less."

         "Does everybody understand the procedure? Would you,
    Mr. Elikann and you, Mr. Napolitano, consult your clients
    right now to make sure that they understand."

         "(Counsel and the clients confer.)"

    Mr. Elikann: "Your Honor, we've completed discussing this
    with our clients."

    The court:     "Mr. Elikann, your client understands?"

    Mr. Elikann:     "Yes, Gerald Sylvia understands."

Later during the colloquy, the second judge inquired whether

"any court employee, anybody in the courtroom, courthouse, or me

even, promised you or told you that I will for sure impose a

particular sentence," to which the defendant responded, "No."
                                                                    8


     After completing the colloquy, and accepting the

defendant's change of plea to each indictment, the second judge

sentenced the defendant (on the armed robbery indictment) to a

conditional sentence of five years to five years and a day and

stated, "[T]his is a conditional sentence.     I may go up, I may

go down.   It's just a number at this time."

     The second judge conducted the sentencing hearing

approximately two months later.   At its conclusion, the second

judge imposed a sentence which, for ease of reference, we place

in the margin alongside the sealed recommendation made by the

Commonwealth.3   During the sentencing hearing, the second judge



3
  Armed robbery (statutory maximum of life in State prison).
Sentence: five years of probation with conditions.
Commonwealth's recommendation: ten to fifteen years in State
prison.

     Armed assault in a dwelling (statutory minimum of ten
years in State prison, up to life). Sentence: not less than
ten years in State prison nor more than ten years and a day.
Commonwealth's recommendation: five years of probation with
conditions.

     Possession of a firearm (statutory minimum of two and one-
half years in State prison, maximum of five years). Sentence:
not less than two and one-half years in State prison nor more
than three years, concurrent. Commonwealth's recommendation:
two and one-half to five years in State prison, concurrent.

     Armed career criminal (statutory range of three to fifteen
years in State prison). Sentence: not less than ten years in
State prison nor more than ten years and one day, concurrent.
Commonwealth's recommendation: three to five years in State
prison, concurrent.
                                                                   9


did not repeat that the defendant could withdraw his plea should

the sentence exceed the Commonwealth's recommendation.

     Discussion.   We begin by noting that the defendant, who

until oral argument was proceeding pro se, has raised some

issues on appeal that were not raised below and did not use the

appropriate procedural mechanism for some of the issues he

raised below.   That said, because the issues have been fully

briefed and they raise purely questions of law given that the

facts are undisputed, and in the interests of efficiency,4 we

exercise our discretion to reach the merits.

     1.   Knowing and Voluntary Nature of Plea.   The defendant

contends that his plea was not knowing and voluntary in three

respects.   His first claim is that he was not adequately

informed that he could withdraw his plea should the sentence

exceed the Commonwealth's recommendation.   Second, he argues

that he tendered his plea based on a sentencing "agreement" with

the first judge that was "breached."   Third, he argues that

there was insufficient evidence presented to the grand jury to



     Possession of marijuana with intent to distribution
(statutory maximum of two and one-half years in the house of
correction). Sentence: five years of probation with
conditions. Commonwealth's recommendation: five years of
probation.
     4
       Were we not to reach them here, the defendant's arguments
could be raised anew in a motion to withdraw plea and for new
trial.
                                                                   10


permit them to find probable cause that he had committed an

armed assault in a dwelling.   Each of these arguments fails.

     Rule 12 of the Massachusetts Rules of Criminal Procedure

sets out the procedures governing the tender and withdrawal of

pleas.5   "If there were sentence recommendations contingent upon

the tender of [a] plea," rule 12(c)(2)(A), as in effect at the

time, required that the judge "inform the defendant that the

court will not impose a sentence that exceeds the terms of the

recommendation without first giving the defendant the right to

withdraw the plea."   See Commonwealth v. Goodwin, 458 Mass. 11,

20 (2010) (Rule 12[c][2] applies where "a guilty plea is

tendered in return for, and contingent on, a sentence

recommendation"); Commonwealth v. Johnson, 11 Mass. App. Ct.

835, 842 (1981) (Rule 12[c][2] applies only where plea is

contingent upon sentencing agreement); Commonwealth v.

Katsirubis, 45 Mass. App. Ct. 132, 138 (1998) (where record does

not disclose existence of a plea agreement, defendant cannot

maintain argument that judge failed to advise him of right to

withdraw plea).   Here, the defendant's guilty plea was not

contingent upon a plea agreement with the prosecutor and,


     5
       Because this is a Superior Court case, it is not governed
in addition by G. L. c. 278, § 18, which applies to the
District, Boston Municipal, and Juvenile Court departments. See
Charbonneau v. Presiding Justice of the Holyoke Div. of the
Dist. Ct. Dept., 473 Mass. 515, 518 (2016).
                                                                  11


therefore, he was not entitled to the benefit of rule

12(c)(2)(A).

    Strictly viewed, the second judge departed from the

requirements of the rule by extending a benefit to the defendant

to which he was not entitled.   But deviations from the rule do

not automatically entitle a defendant to withdraw his plea.

"The real issue in cases like the present one is whether a

waiver was knowingly and voluntarily made.   Thus, while

compliance with the procedures set out in rule 12(c) is

mandatory, adherence to or departure from them is but one factor

to be considered in resolving the issue."    Commonwealth v.

Johnson, supra at 841 (citations and quotation marks omitted).

See Commonwealth v. Barry, 19 Mass. App. Ct. 995, 996 (1985);

Commonwealth v. Clerico, 35 Mass. App. Ct. 407, 413 (1993).

Here, unlike in other cases, the second judge's departure from

rule 12 resulted in the defendant receiving more procedural

protection during the plea colloquy than he was entitled to

under the rule.   The extra procedural protection does not cast

in doubt the voluntary or knowing nature of the plea.

    What remains to consider, therefore, is whether -- having

given the defendant a benefit to which he was not entitled

during the plea colloquy (i.e., the ability to withdraw his plea

even though it was not contingent upon a sentencing

recommendation) -- the second judge was required to repeat it
                                                                   12


during the sentencing hearing.    The defendant points to two

facts that support his argument in this regard.    First, a

significant amount of time passed between the plea colloquy and

the sentencing hearing such that repetition was in order.

Second, the defendant could not have withdrawn his plea until he

knew both the second judge's sentence and the Commonwealth's

recommendation.    Thus, he argues, the rule 12(c)(2)(A) right was

meaningless when given and absent when the time was ripe.

     Even accepting the defendant's argument, however, he does

not argue that the second judge's sentence exceeded that

recommended by the prosecutor, because the prosecutor sought a

ten to fifteen year sentence, while the defendant received a

sentence of ten years to ten years and one day.6   In light of the

defendant's failure to argue any harm, we cannot conclude that

the motion judge abused his discretion in denying the

defendant's motion to be released from unlawful restraint.      See

Commonwealth v. Sherman, 451 Mass. 332, 342 (2008) (defendant

not entitled to withdraw plea where deviation from rule 12 did

no harm to him).

     The record does not support the defendant's argument that

he had an "agreement" with the first judge that was "breached."


     6
       Consequently, we need not address whether the proper unit
for determining whether a sentence exceeds a recommendation is
the overall sentence or the sentence on each individual count.
                                                                    13


"[P]lea bargaining is often analogized to a contractual

negotiation.   However, no contract could have been made in the

instant circumstances because . . . the judge did not

participate in the plea bargaining process."    Commonwealth v.

Kelleher, 28 Mass. App. Ct. 915, 916 (1989) (citation and

quotation marks omitted).   Although the first judge expressed

her view, during a pretrial conference, of the sentencing range

she would consider if the defendant changed his plea, that

statement was informational in nature and did not amount to a

binding agreement.   To begin with, it is doubtful "that a judge,

as opposed to a prosecutor, could ever be held to a contract to

accept a particular plea offer.    A judge would have discretion

to change his or her mind until the plea was accepted."       Id. at

916-917 n.5.   See Commonwealth v. Rodriguez, 461 Mass. 256, 261-

262 (2012).    In addition, even if we were to view the first

judge's comment as a form of contractual offer, the defendant

did not accept it by changing his plea.

    Finally, there was no error in denying the defendant's

motion to be released from unlawful restraint based on his claim

that the evidence before the grand jury was insufficient to

permit the grand jury to determine that his entry into the

victim's apartment was unlawful.    "By pleading guilty the

defendant admitted all facts well charged in the indictments

against him," Commonwealth v. Zion, 359 Mass. 559, 563 (1971),
                                                                    14


and "waive[d] all nonjurisdictional defects."    Commonwealth v.

Cabrera, 449 Mass. 825, 830 (2007).    Even were this not the

case, the evidence before the grand jury was sufficient to

permit the inference that, although the victim may have

consented to the defendant's entry, that consent was "legally

[in]significant [because] the occupant [was not] made aware

[that] the person at the door [was] armed with a dangerous

weapon and [was] about to commit an assault once inside."

Commonwealth v. Maher, 430 Mass. 643, 652-653 (2000).7

     2.   Armed Career Criminal.   The defendant was charged with

possession of a firearm, G. L. c. 269, § 10(a), and in a

separate indictment, with being an armed career criminal, G. L.

c. 269, § 10G(a).   The second judge sentenced the defendant to

two and one-half to three years on the firearm charge, and to

ten years to ten years and one day on the armed career criminal

charge, both to run concurrently with the sentence imposed for

the armed assault in a dwelling.    The defendant argues that,

because there is no freestanding crime of being an armed career

criminal, he should not have been sentenced separately for it.

     The armed career criminal statute "does not define a stand-

alone, separate offense.   Rather, the repeat offender statute

establishes sentencing enhancements for offenders who, 'having

     7
       For this reason, the defendant has failed to establish
that his attorney was ineffective for failing to seek to dismiss
the indictment.
                                                                   15


been previously convicted of two violent crimes, or two serious

drug offenses or one violent crime and one serious drug

offense,' commit certain firearms offenses, including those

prohibited by [G. L. c. 269,] § 10(a) and (h).    See Commonwealth

v. Fernandes, 430 Mass. 517, 520–521 (1999), cert. denied sub

nom. Martinez v. Massachusetts, 530 U.S. 1281 (2000) (repeat

offender sentencing enhancement does not constitute

'freestanding crime'; 'the counts for the current offense and

for the repeat offense are viewed as parts of one indictment and

charge only one crime with a sentencing enhancement

provision')."   Alicea v. Commonwealth, 466 Mass. 228, 230-231

n.6 (2013).   It follows that the defendant should have received

only a single sentence on the underlying firearm offense,

enhanced as provided by the career criminal statute.   See Bynum

v. Commonwealth, 429 Mass. 705, 708-709 (1999).   Separate

sentences should not have been imposed.

    Because the defendant pleaded guilty to the armed career

enhancement, which included admitting the facts necessary to

satisfy its application, we consider the simplest way to correct

the error is to remand the matter to the Superior Court to

implement the procedure followed in Commonwealth v. Miranda, 441

Mass. at 787-790 (2004).   Accordingly, the orders entered on

July 11, 2013, and May 22, 2014, with respect to the indictments

charging the defendant with armed robbery, armed assault in a
                                                                    16


dwelling with the use of a firearm, and possession of marijuana

with the intent to distribute, are affirmed, and as to the

remaining two indictments, the matter is remanded to Superior

Court, where the possession of a firearm indictment is to be

amended to include the armed career criminal indictment, the

latter indictment is to be dismissed, and the defendant is to be

resentenced on the former indictment as so amended.   See

Commonwealth v. Owen, 61 Mass. App. Ct. 711, 715 (2004).     This

is a "proper way to correct the Commonwealth's mistake to avoid

possible problems for the defendant if it appeared that he was

convicted of two separate offenses."   Commonwealth v. Miranda,

441 Mass. at 789-790.

                                   So ordered.
