NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-629
COMMONWEALTH
vs.
GEORGE D. HAGGERTY, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant is incarcerated on concurrent life sentences
stemming from his 1983 convictions of unarmed robbery and of
burglary with assault on an occupant. He was also convicted of
murder in the first degree, but on appeal the Supreme Judicial
Court vacated that conviction on the ground that trial counsel
was ineffective. See Commonwealth v. Haggerty, 400 Mass. 437
(1987) (Haggerty I). Over thirty-five years later, the
defendant filed a motion under Mass. R. Crim. P. 30 (b), as
appearing in 435 Mass. 1501 (2001), seeking resentencing on his
remaining convictions. A Superior Court judge (motion judge) --
who, unsurprisingly given the passage of time, was not the trial judge -- denied the defendant's motion, and the defendant
appeals. We affirm.
Background. On the morning of June 16, 1982, the elderly
victim was found in her apartment beaten beyond recognition.
Earlier that morning, a police officer had seen the defendant
acting suspiciously in the vicinity of the victim's apartment
building. The defendant's hands were bleeding, there was blood
on his pants, and he had two watches in his pockets. The
officer released the defendant after seeing his identification,
but later reported his observations of the defendant to police
detectives after learning of the assault in the victim's
apartment. The police then executed a search warrant on the
defendant's home and found two televisions and two watches
belonging to the victim. After several weeks in the hospital,
the victim suffered a heart attack, and she died on August 11,
1982.
The jury convicted the defendant of murder in the first
degree, unarmed robbery, burglary with assault on an occupant,
and larceny. At the sentencing hearing, trial counsel made no
meaningful argument, stating instead that the sentences were
"rather automatic." The trial judge agreed and imposed the
required life sentence on the murder conviction and concurrent
life sentences on the convictions of unarmed robbery and of
2 burglary with assault on an occupant. The larceny conviction
was placed on file.
Soon after sentencing, new counsel (first postconviction
counsel) moved for a new trial on the murder charge, claiming
that trial counsel was ineffective for failing to investigate
and pursue a defense that the defendant's actions were not the
proximate cause of the victim's death. The trial judge denied
the motion, but on appeal the Supreme Judicial Court reversed
and remanded "for a new trial solely on the indictment for
murder in the first degree." Haggerty I, 400 Mass. at 443.1 The
court affirmed the convictions of unarmed robbery and of
burglary with assault on an occupant, expressly acknowledging
that the defendant was "serving concurrent life sentences" on
those convictions. Id. First postconviction counsel then
withdrew without taking any further action.
In or around 1991, once it became clear that the
Commonwealth would not seek to retry the defendant on the murder
charge, another attorney (second postconviction counsel) was
appointed for the limited purpose of filing a motion to dismiss
that charge. Second postconviction counsel filed such a motion,
1 The court concluded that trial counsel was ineffective for failing to "commence even a minimal investigation" into the issue of causation, Haggerty I, 400 Mass. at 443, while noting that "[t]he Commonwealth's evidence overwhelmingly showed that the defendant assaulted and beat the victim." Id. at 441 n.9.
3 which was allowed. He did not thereafter seek resentencing on
the defendant's remaining convictions.
Despite appearing before the parole board several times,
the defendant has never been granted parole. He was most
recently denied parole in early 2023. A few months later, he
filed his current motion for resentencing, claiming that this
remedy was available to him under rule 30 (b) because justice
was not done, or alternatively that resentencing was warranted
because trial counsel and both postconviction counsel were
ineffective. After a nonevidentiary hearing, the motion judge
rejected both arguments, concluding that rule 30 (b) was not the
appropriate vehicle to seek resentencing unless the defendant
could show that he received ineffective assistance of counsel,
which he failed to do. This appeal followed.
Discussion. Because the motion judge was not the trial
judge and did not conduct an evidentiary hearing, we review the
denial of the defendant's motion de novo. See Commonwealth v.
Mazza, 484 Mass. 539, 547 (2020).
1. Availability of relief under rule 30 (b). The
defendant argues that rule 30 (b) entitles him to a resentencing
hearing upon a showing that justice may not have been done,
irrespective of whether any of his attorneys were ineffective.
And justice was not done, he says, because of "judicial or
4 prosecutorial errors" in his case -- namely, the Supreme
Judicial Court's failure in Haggerty I to order resentencing
after vacating the murder conviction, and the Commonwealth's
failure to move for resentencing after issuance of the rescript.
According to the defendant, these errors resulted in a
substantial risk that the concurrent life sentences he is
serving "are far more punitive than what [he] would have
received" had he been sentenced "without the specter of a felony
murder conviction," thus warranting relief under rule 30 (b).
We are unpersuaded.
As a procedural matter, we disagree with the defendant's
contention that rule 30 (b) is an available means through which
he may challenge the justice of his sentences. Instead, the
proper vehicle to raise such a claim is Mass. R. Crim. P.
29 (a) (2), as appearing in 489 Mass. 1503 (2022), which
authorizes a "trial judge, upon . . . the written motion of a
defendant, filed within sixty days of a disposition [or] within
sixty days of issuance of a rescript by an appellate court on
direct review" to "revise or revoke [a] disposition if it
appears that justice may not have been done."2 The sixty-day
2 A defendant may also seek correction of an illegal sentence "at any time" under Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). "An illegal sentence is one that is not permitted by law for the offense committed." Commonwealth v. McGuiness, 421 Mass. 472, 475 (1995).
5 time limit in rule 29 (a) (2) is jurisdictional. See
Commonwealth v.
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-629
COMMONWEALTH
vs.
GEORGE D. HAGGERTY, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant is incarcerated on concurrent life sentences
stemming from his 1983 convictions of unarmed robbery and of
burglary with assault on an occupant. He was also convicted of
murder in the first degree, but on appeal the Supreme Judicial
Court vacated that conviction on the ground that trial counsel
was ineffective. See Commonwealth v. Haggerty, 400 Mass. 437
(1987) (Haggerty I). Over thirty-five years later, the
defendant filed a motion under Mass. R. Crim. P. 30 (b), as
appearing in 435 Mass. 1501 (2001), seeking resentencing on his
remaining convictions. A Superior Court judge (motion judge) --
who, unsurprisingly given the passage of time, was not the trial judge -- denied the defendant's motion, and the defendant
appeals. We affirm.
Background. On the morning of June 16, 1982, the elderly
victim was found in her apartment beaten beyond recognition.
Earlier that morning, a police officer had seen the defendant
acting suspiciously in the vicinity of the victim's apartment
building. The defendant's hands were bleeding, there was blood
on his pants, and he had two watches in his pockets. The
officer released the defendant after seeing his identification,
but later reported his observations of the defendant to police
detectives after learning of the assault in the victim's
apartment. The police then executed a search warrant on the
defendant's home and found two televisions and two watches
belonging to the victim. After several weeks in the hospital,
the victim suffered a heart attack, and she died on August 11,
1982.
The jury convicted the defendant of murder in the first
degree, unarmed robbery, burglary with assault on an occupant,
and larceny. At the sentencing hearing, trial counsel made no
meaningful argument, stating instead that the sentences were
"rather automatic." The trial judge agreed and imposed the
required life sentence on the murder conviction and concurrent
life sentences on the convictions of unarmed robbery and of
2 burglary with assault on an occupant. The larceny conviction
was placed on file.
Soon after sentencing, new counsel (first postconviction
counsel) moved for a new trial on the murder charge, claiming
that trial counsel was ineffective for failing to investigate
and pursue a defense that the defendant's actions were not the
proximate cause of the victim's death. The trial judge denied
the motion, but on appeal the Supreme Judicial Court reversed
and remanded "for a new trial solely on the indictment for
murder in the first degree." Haggerty I, 400 Mass. at 443.1 The
court affirmed the convictions of unarmed robbery and of
burglary with assault on an occupant, expressly acknowledging
that the defendant was "serving concurrent life sentences" on
those convictions. Id. First postconviction counsel then
withdrew without taking any further action.
In or around 1991, once it became clear that the
Commonwealth would not seek to retry the defendant on the murder
charge, another attorney (second postconviction counsel) was
appointed for the limited purpose of filing a motion to dismiss
that charge. Second postconviction counsel filed such a motion,
1 The court concluded that trial counsel was ineffective for failing to "commence even a minimal investigation" into the issue of causation, Haggerty I, 400 Mass. at 443, while noting that "[t]he Commonwealth's evidence overwhelmingly showed that the defendant assaulted and beat the victim." Id. at 441 n.9.
3 which was allowed. He did not thereafter seek resentencing on
the defendant's remaining convictions.
Despite appearing before the parole board several times,
the defendant has never been granted parole. He was most
recently denied parole in early 2023. A few months later, he
filed his current motion for resentencing, claiming that this
remedy was available to him under rule 30 (b) because justice
was not done, or alternatively that resentencing was warranted
because trial counsel and both postconviction counsel were
ineffective. After a nonevidentiary hearing, the motion judge
rejected both arguments, concluding that rule 30 (b) was not the
appropriate vehicle to seek resentencing unless the defendant
could show that he received ineffective assistance of counsel,
which he failed to do. This appeal followed.
Discussion. Because the motion judge was not the trial
judge and did not conduct an evidentiary hearing, we review the
denial of the defendant's motion de novo. See Commonwealth v.
Mazza, 484 Mass. 539, 547 (2020).
1. Availability of relief under rule 30 (b). The
defendant argues that rule 30 (b) entitles him to a resentencing
hearing upon a showing that justice may not have been done,
irrespective of whether any of his attorneys were ineffective.
And justice was not done, he says, because of "judicial or
4 prosecutorial errors" in his case -- namely, the Supreme
Judicial Court's failure in Haggerty I to order resentencing
after vacating the murder conviction, and the Commonwealth's
failure to move for resentencing after issuance of the rescript.
According to the defendant, these errors resulted in a
substantial risk that the concurrent life sentences he is
serving "are far more punitive than what [he] would have
received" had he been sentenced "without the specter of a felony
murder conviction," thus warranting relief under rule 30 (b).
We are unpersuaded.
As a procedural matter, we disagree with the defendant's
contention that rule 30 (b) is an available means through which
he may challenge the justice of his sentences. Instead, the
proper vehicle to raise such a claim is Mass. R. Crim. P.
29 (a) (2), as appearing in 489 Mass. 1503 (2022), which
authorizes a "trial judge, upon . . . the written motion of a
defendant, filed within sixty days of a disposition [or] within
sixty days of issuance of a rescript by an appellate court on
direct review" to "revise or revoke [a] disposition if it
appears that justice may not have been done."2 The sixty-day
2 A defendant may also seek correction of an illegal sentence "at any time" under Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). "An illegal sentence is one that is not permitted by law for the offense committed." Commonwealth v. McGuiness, 421 Mass. 472, 475 (1995).
5 time limit in rule 29 (a) (2) is jurisdictional. See
Commonwealth v. DeJesus, 440 Mass. 147, 150-151 (2003). Thus,
because rule 29 (a) (2) expressly provides a mechanism for a
defendant to seek modification of his sentence on the ground
that it is unjust, we decline to construe rule 30 (b) to allow
for the same relief. Were we to conclude otherwise, it would
render rule 29 (a) (2), and its jurisdictional time limit,
meaningless because a motion under rule 30 (b) may be brought
"at any time." Mass. R. Crim. P. 30 (b).
Furthermore, even putting aside this procedural hurdle, the
defendant has not shown that there were judicial or
prosecutorial errors in his case that made his sentences unjust.
As mentioned, the defendant's claim of judicial error is based
on the Supreme Judicial Court's failure in Haggerty I to order
resentencing upon vacating his murder conviction, which the
defendant characterizes as a "procedural irregularity" and an
"oversight." But contrary to the defendant's assertion, an
appellate court does not invariably order resentencing if it
affirms some convictions but reverses or vacates others
resulting from the same trial. Rather, in that situation, an
appellate court will ordinarily remand for resentencing if the
sentences were "interdependent," meaning they were part of "an
integrated package, each piece dependent on the other, which
6 cannot be separated." Commonwealth v. Tinsley, 487 Mass. 380,
390 (2021), quoting Commonwealth v. Renderos, 440 Mass. 422, 435
(2003). Here, there is no basis in the record on which we could
conclude that the lack of a resentencing order in Haggerty I
resulted not from an application of this principle, but from an
oversight. This is especially so where the court expressly
noted in its disposition of the appeal that the defendant was
"serving concurrent life sentences" on the convictions that it
affirmed. Haggerty I, 400 Mass. at 443.
As for the asserted prosecutorial error, the defendant
argues in his opening brief that the Commonwealth had a duty to
move for resentencing after the rescript issued in Haggerty I
because, once the murder conviction was vacated, the concurrent
sentences on the other convictions "essentially ceased to
exist." In his reply brief, however, the defendant concedes
that vacatur of the murder conviction did not invalidate the
concurrent sentences. As the defendant raises no other claim of
prosecutorial error, he has failed to show that he is entitled
to resentencing on this basis.
2. Ineffective assistance of counsel. Accepting that rule
30 (b) is an appropriate vehicle to raise a claim of ineffective
assistance of counsel at sentencing, see, e.g., Commonwealth v.
Gilbert, 94 Mass. App. Ct. 168, 172, 175 (2018), we conclude
7 that on this record the defendant failed to meet his burden of
proving his claim. The defendant submitted with his motion an
affidavit from second postconviction counsel, while representing
in his motion that "[e]fforts to obtain additional information
from [the defendant's] other counsel [have] proven futile."
Second postconviction counsel averred in his affidavit that he
did not request resentencing because "[i]t was [his] belief that
[the defendant] would be parole-eligible once the first degree
murder charges were dismissed, and that he would be paroled soon
after the motion was allowed." As the motion judge found, this
"was arguably sound strategy."
Ultimately, however, we do not address whether the
performance of any of the attorneys was constitutionally
deficient because we agree with the motion judge that the
defendant failed to demonstrate prejudice. See Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). The motion judge accurately
observed that the defendant's motion argued only in conclusory
fashion that "it was likely that a Court would have sentenced
[the defendant] to a term of years" had any of his attorneys
made arguments in favor of mitigation and proportionality.
Although the defendant (through his current counsel) presented
information at the nonevidentiary hearing about his upbringing
and personal circumstances, none of that information was
8 presented with his motion through affidavits or other
documentary evidence. Rather, as the motion judge characterized
it, the information "was provided as, essentially, a preview of
the mitigation argument counsel would make if the court
determined resentencing was warranted."
Moreover, although the defendant attached to his motion an
addendum listing what he called "similar cases decided during
[the same] time frame," that does not suffice to show prejudice.
The sentences imposed in those cases were varied, included life
terms, and of course were dependent on the specific facts of
each case and the personal circumstances of the individual
defendant. Here, the defendant failed to present evidence of
any mitigating factors, and the record establishes the existence
of aggravating factors, including the defendant's significant
criminal history and, notwithstanding the vacatur of the murder
conviction, the victim's death. See Commonwealth v. Vega, 54
Mass. App. Ct. 249, 250-251 (2002) (although jury acquitted
defendant of causing "ultimate death" of victim, sentencing
judge could still consider it as aggravating factor where
defendant "set in motion a chain of events in which death was a
distinct possibility"). In these circumstances we are unable to
conclude that the defendant met his burden of showing that he
9 was deprived of "an otherwise available, substantial ground of
defence." Saferian, 366 Mass. at 96.
Order dated April 11, 2024, denying motion for resentencing affirmed.
By the Court (Neyman, Shin & Wood, JJ.3),
Clerk
Entered: March 31, 2025.
3 The panelists are listed in order of seniority.