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13-P-1232                                           Appeals Court

             COMMONWEALTH    vs.   LANNY STEED SCOTT.


                           No. 13-P-1232.

        Hampden.       October 9, 2014. - January 5, 2015.

            Present:    Graham, Brown, & Sullivan, JJ.


   Practice, Criminal, Double jeopardy, Sentence, Probation.



     Indictments found and returned in the Superior Court
Department on January 17, 2007.

     Following review by this court, 78 Mass. App. Ct. 1123
(2011), and the Supreme Judicial Court, 464 Mass. 355 (2013),
resentencing proceedings were heard by John S. Ferrara, J.


     Michael J. Fellows for the defendant.
     Dianne M. Dillon, Assistant District Attorney, for the
Commonwealth.


    SULLIVAN, J.   The defendant, Lanny Steed Scott, was

convicted on all charges in a five-count indictment charging

kidnapping, G. L. c. 265, § 26 (Count 1); assault by means of a

dangerous weapon, G. L. c. 265, § 15B(b) (Count 2); assault and

battery, G. L. c. 265, § 13A (Count 3); assault and battery
                                                                    2


causing serious bodily injury, G. L. c. 265, § 13A(b)(i) (Count

4); and malicious destruction of property, G. L. c. 266, § 127

(Count 5).     On appeal, the Supreme Judicial Court determined

there was insufficient evidence to support the conviction on

Count 4, assault and battery causing serious bodily injury, and

ordered that judgment enter for the defendant on that count.1

The case was remanded for resentencing on the remaining counts

of the indictment.     See Commonwealth v. Scott, 464 Mass. 355,

364 (2013).    At resentencing, the judge (who was not the trial

judge) retained the original sentences on Counts 1, 3, and 5.

On Count 2, for which the defendant had already completed his

original sentence of from two to five years in State prison

concurrent with Count 1 (see Appendix), the judge imposed a

five-year term of probation from and after the committed

sentence in Count 1.     The defendant maintains that this aspect

of the resentencing violated principles of double jeopardy and

due process.    See Commonwealth v. Cumming, 466 Mass. 467 (2013)

(Cumming).     Compare Commonwealth v. Leggett, 82 Mass. App. Ct.

730 (2012) (Leggett).     We vacate the sentences, and remand for

resentencing.

     1
       In a decision pursuant to our rule 1:28, this court had
affirmed the defendant's convictions. See Commonwealth v.
Scott, 78 Mass. App. Ct. 1123 (2011). The Supreme Judicial
Court then granted the defendant's application for further
appellate review, limiting its consideration to the sufficiency
of the evidence on Count 4.
                                                                    3


     Background.    The defendant was originally sentenced on

December 20, 2007, to a period of from eight to ten years in

State prison on Count 1, the kidnapping conviction, and to a

period of two to five years in State prison on Count 4, the

since-vacated conviction, to run on and after the sentence on

Count 1.2   He was sentenced to concurrent terms of incarceration

of up to five years on the remaining counts of the indictment.

See Appendix.   Resentencing occurred over five years later, on

April 30, 2013.    By this time the concurrent terms of

incarceration had been fully served, including the original

sentence of from two to five years in State prison on Count 2,

assault by means of a dangerous weapon.    See Appendix.

     The judge reimposed the eight to ten year sentence on Count

1, the kidnapping conviction.    Relying on Leggett, supra, he

resentenced the defendant to a five-year term of probation on

Count 2, to run on and after the sentence on Count 1.3     The

original aggregate sentence of a maximum fifteen years'

incarceration was converted to an aggregate sentence of up to


     2
       The defendant also received credit for 409 days of time
served awaiting disposition.
     3
       The resentencing judge, who, as we have noted, was not the
trial judge, questioned whether he was permitted to resentence
the defendant on Count 2. All other concurrent sentences were
of shorter duration and had already been served as well. The
judge requested briefing. The parties argued the applicability
of Leggett, upon which the judge relied.
                                                                    4


ten years' incarceration and five years' probation.   This was

accomplished, however, by vacating the original sentence (which

had already been served) on Count 2, and adding a new

probationary term on and after the original sentence on Count 1.

    Double jeopardy.   The double jeopardy clause, which

protects a defendant against "multiple punishments for the same

offense, . . . 'represents a constitutional policy of finality

for the defendant's benefit' in criminal proceedings."

Commonwealth v. Goodwin, 458 Mass. 11, 19 (2010), quoting from

Aldoupolis v. Commonwealth, 386 Mass. 260, 271-272, 274, cert.

denied, 459 U.S. 864 (1982).   "In this Commonwealth, the subject

of double jeopardy generally has been treated as a matter of

common law rather than as a question under the Constitution of

the Commonwealth."   Commonwealth v. Goodwin, supra at 20,

quoting from Aldoupolis v. Commonwealth, supra at 271 n.14.

    The defendant asserts that it was impermissible to

resentence him to an additional term of probation on Count 2,

because he had already served the two to five year sentence in

full at the time of resentencing.   The Commonwealth contends

that the defendant had no expectation of finality in his

sentence until all of the aggregate sentence had been served,

and that so long as the aggregate sentence on resentencing does

not exceed the original aggregate sentence, there is no

infirmity.
                                                                          5


       Leggett held that a defendant "does not have a reasonable

expectation of finality in any one part or element of [an

interdependent] bundle of sentences, but rather, in the entirety

of the scheme."      Cumming, 466 Mass. at 471, quoting from

Leggett, 82 Mass. App. Ct. at 736-737.         In Leggett, the

defendant challenged the entire bundle of sentences on the

ground of improper comments made by the judge during sentencing.

After a successful appeal from the denial of his motion for

resentencing, Leggett's original aggregate sentence of from

nineteen to twenty years was vacated, and he was resentenced to

a term of from sixteen years to sixteen years and one day and

five years of postrelease probation.          82 Mass. App. Ct. at 732-

733.       Leggett contended that the new probationary terms were

illegal because they were imposed with respect to sentences

already fully served.       Id. at 733-734.    In a divided opinion, we

held that the "vacation of a sentencing scheme creates a clean

slate for resentencing," and rejected the notion that "a

reasonable expectation of finality vests in a fully served

component sentence of a scheme of multiple sentences."           Id. at

736, 739.

       A trio of cases decided since Leggett calls into question

the breadth of its holding.4      In Cumming, the Supreme Judicial


       4
       See Commonwealth v. Cumming, 466 Mass. 467 (2013);
Commonwealth v. Cole, 468 Mass. 294 (2014); Commonwealth v.
                                                                    6


Court, citing Leggett, held that a defendant who files a motion

to correct the illegal component of an interdependent sentence

"knowingly expose[s] himself to the possibility that his entire

sentencing scheme might be restructured."    Cumming, 466 Mass. at

471.   The court limited that restructuring, however, to (1)

component sentences that were still outstanding at the time of

resentencing, and (2) a sentencing scheme that did not exceed

the maximum aggregate sentence of the lawful sentence originally

imposed.   Id. at 472-474, citing Shabazz v. Commonwealth, 387

Mass. 291, 296 (1982).    As the court later reiterated in

Commonwealth v. Cole, 468 Mass. 294, 311 (2014) (Cole), in

holding that resentencing was barred where the probationary

sentence had been served in full, resentencing "[can]not

increase the 'aggregate punishment' imposed under the original

sentence because of the defendant's right to be free from double

jeopardy."   Id. at 310, quoting from Cumming, supra at 468.

       Commonwealth v. Parrillo, 468 Mass. 318 (2014) (Parrillo),

decided the same day as Cole, again stated that "to accord with

double jeopardy principles, resentencing must not result in any

increase in the aggregate punishment and must be 'quantitatively

fair.'"    Id. at 321, quoting from Leggett, 82 Mass. App. Ct. at


Parrillo, 468 Mass. 318 (2014). All involved the permissible
scope of resentencing after a defendant's sentence of community
parole supervision for life had been vacated as an illegal
sentence.
                                                                       7


737.       Parrillo also expressly stated that which was implicit in

Cumming.5      That is, where a component sentence in an

interdependent sentencing scheme has been served, the defendant

may not be resentenced in a manner that increases his or her

punishment on the component sentence.

       "The judge may not resentence the defendant on the two
       convictions for which the defendant has already served his
       sentence, because any such resentencing would result in an
       increase in punishment in violation of double jeopardy
       principles. See Cumming, 466 Mass. at 473-474. The judge
       in his sound discretion may resentence on the [conviction
       for which the defendant is currently on probation under a
       suspended sentence], provided the new sentence satisfies
       the double jeopardy principles set forth in Cumming,
       supra."

Parrillo, 468 Mass. at 321.

       Both parties to this appeal have proceeded on the basis

that it is governed, at least in part, by Cumming.         In this

case, the sole issue before the Supreme Judicial Court in the

defendant's first appeal was the sufficiency of the evidence

supporting the conviction on Count 2, assault and battery

causing serious bodily injury, and the sole relief sought was

the entry of judgment for the defendant on that count.         See

Commonwealth v. Scott, 464 Mass. at 360, citing Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979); id. at 356, 364.         No

challenge was made to the other convictions or component


       5
       The resentencing judge here did not have the benefit of
either Cole or Parrillo.
                                                                   8


sentences, and the "lawful components of the defendant's

sentences were in one sense final" for purposes of double

jeopardy.   Cumming, 466 Mass. at 472.   Here, by arguing

successfully that there was insufficient evidence to support one

of his convictions, the defendant eliminated one component of a

sentencing scheme, and thereby exposed himself (at most) to the

risk inherent in resentencing in light of the interdependent

nature of the original sentences imposed.    Compare Cumming,

Cole, and Parrillo, supra (defendants did not challenge their

convictions, but succeeded in eliminating one component of a

sentencing scheme).6

     That risk is delimited by our common law of double

jeopardy, which requires that the restructured scheme be

"quantitatively fair."   Cumming, supra at 472.7   The defendant


     6
       In these circumstances, the Supreme Judicial Court's
remand did not constitute a remand to resentence "anew" on a
clean slate as to all convictions. Contrast Commonwealth v.
White, 436 Mass. 340, 341, 344 & n.3 (2002). Unlike White,
where all the convictions were affirmed, but the sentences were
vacated due to consideration of improper factors at sentencing,
thus rendering the entire sentencing scheme a "nullity," the
defendant here succeeded in vacating one of the convictions. He
did not make a "'voluntary choice' to invalidate his original
punishment" as to all convictions. Cumming, 466 Mass. at 471,
quoting from Leggett, 82 Mass. App. Ct. at 737. Compare North
Carolina v. Pearce, 395 U.S. 711 (1969); Commonwealth v. Hyatt,
419 Mass. 815, 823 (1995).
     7
       In light of our disposition on State common-law grounds,
we need not address the Federal constitutional double jeopardy
and due process claims advanced by the defendant. We also need
not resolve the defendant's argument that he would be entitled
                                                                   9


had a legitimate expectation of finality in his sentence once

served.8   See Parrillo, 468 Mass. at 321.   Cf. Commonwealth v.

Selavka, 469 Mass. 502, 503, 514 (2014) (Commonwealth's effort

to correct illegal sentence barred by double jeopardy where

defendant had a reasonable expectation of finality in a

partially served illegal sentence).

     This case is therefore controlled in all material respects

by the reasoning of Parrillo.9   Having served his entire original

sentence on Count 2, the defendant could not be resentenced on

that conviction.   The Commonwealth's argument that a term of

probation does not constitute an additional punishment, see

Leggett, 82 Mass. App. Ct. at 739, is foreclosed by Cumming,

which holds that the prospect of incarceration for a violation


to credit for time served if his probation were revoked.    See
Cumming, 466 Mass. at 474 n.6.
     8
       Compare Leggett and White, supra, where the defendants
challenged their entire sentencing scheme based on the
consideration of improper factors at sentencing. See note 6,
supra. This case does not raise, and we do not consider, the
applicability of the double jeopardy bar discussed in Cumming,
Cole, and Parrillo to cases such as Leggett, where the entire
sentencing scheme has been invalidated on appeal, but a
component sentence has been served in full.
     9
       The briefs in this case were filed before the Supreme
Judicial Court issued its decisions in Cole and Parillo. In
light of these precedents, we need not reach the defendant's
alternative contentions that Leggett has no application in a
case in which a conviction has been vacated due to insufficient
evidence, and that double jeopardy bars resentencing where a
defendant's conviction, for which he received an "on and after"
sentence, has been vacated for insufficient evidence.
                                                                  10


of probation constitutes punishment for purposes of double

jeopardy.   466 Mass. at 473-474, citing Commonwealth v. Goodwin,

458 Mass. at 18.

    Conclusion.    The defendant may not be resentenced on Counts

2, 3, or 5, for which he has already served his sentences.   If

the defendant has not yet completed his sentence on Count 1, the

judge, in his sound discretion, may resentence the defendant on

that count, provided the new sentence satisfies the double

jeopardy principles set forth in Cumming, Cole, and Parrillo.

The defendant's sentences are vacated, and the case is remanded

for resentencing consistent with this opinion.

                                    So ordered.
                                                                    11


                            Appendix.

     Sentences, Commonwealth vs. Scott, No. HDCR2007-00088


     Count         Indictment          Original          Sentence
                                      Sentence*            After
                                    December 20,         Remand**
                                         2007           April 30,
                                                            2013

      001        Kidnapping,       Not less than 8 No change
  (2007-88-1)    G. L. c. 265,     yrs. nor more
                 § 26              than 10 yrs. in
                                   State prison

      002        Assault by        Not less than 2   5 yrs. of
  (2007-88-2)    means of a        yrs. nor more     probation, on
                 dangerous         than 5 yrs. in    and after Count
                 weapon, G. L.     State prison,     001
                 c. 265,           concurrent with
                 § 15B(b)          Count 001

      003        Assault and       2.5 yrs. in     No change
  (2007-88-3)    battery, G. L.    house of
                 c. 265, § 13A     correction,
                                   concurrent with
                                   Count 001

     004         Assault and       Not less than 2   Judgment for
 (2007-88-4)     battery causing   yrs. nor more     defendant, see
 appealed to     serious bodily    than 5 yrs. in    464 Mass. 355
   Supreme       injury, G. L.     State prison,     (2013)
Judicial Court   c. 265,           on & after
                 § 13A(b)(i)       Count 001

      005        Malicious         60 days in      No change
  (2007-88-5)    destruction of    house of
                 property, G. L.   correction,
                 c. 266, § 127     concurrent with
                                   Count 001



*Credit for 409 days awaiting original disposition.
**Credit for 2,380 days.
