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SJC-13052
COMMONWEALTH vs. TONY A. TINSLEY.1
Berkshire. April 5, 2021. - May 6, 2021.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
Armed Home Invasion. Constitutional Law, Double jeopardy, Sentence. Practice, Criminal, New trial, Double jeopardy, Sentence. Words, "Dwelling place."
Indictments found and returned in the Superior Court Department on September 23, 2005.
A motion for a new trial, filed on August 6, 2019, was heard by John A. Agostini, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Steven M. Greenbaum, Special Assistant District Attorney, for the Commonwealth. S. Anders Smith for the defendant.
1 As is our practice, we spell the defendant's name as it appears in the indictments. The indictments state that the defendant also is known as Anthony A. Tinsley and Tone. 2
GAZIANO, J. Just after one o'clock in the morning on
August 30, 2005, the defendant, along with Anthony Davis, broke
into a home near Pittsfield. The family who lived in the house
and had been asleep inside were injured as they fought the
intruders and ultimately drove the intruders from their home.
In 2007, a Superior Court jury convicted the defendant of armed
home invasion, armed burglary, robbery while armed and masked,
assault and battery by means of a dangerous weapon, and assault
and battery in conjunction with this incident. In 2019, he
moved for a new trial on the charge of armed home invasion, on
the ground that the Commonwealth had not presented sufficient
evidence that he was armed when he entered the dwelling, as
required by G. L. c. 265, § 18C. That motion was allowed by a
Superior Court judge who also had been the trial judge.
We agree with the judge that the evidence supporting the
charge of armed home invasion was insufficient to allow a
finding beyond a reasonable doubt on each element of the
offense. We therefore affirm the allowance of the defendant's
motion for a new trial, and remand the matter to the Superior
Court for resentencing on the remaining convictions. Under
double jeopardy principles, a new sentence may be imposed only
on those convictions for which the sentence has not been fully
served at the time of resentencing. 3
1. Background. We recite the facts relevant to the issues
in the motion for a new trial, based on the trial record.
Sophie and Jack Smith, wife and husband, had lived for
fourteen years in a house that they had built in an isolated
area in western Massachusetts.2 On Monday, August 29, 2005, the
couple spent the evening at home. Their older son had just left
to begin his first year at college; their younger son Alex, a
senior in high school at that time, went out to see friends and
returned home around 11:15 P.M.
All three family members had gone to sleep when, at
approximately 1:13 A.M., Sophie was awakened by a noise outside
her bedroom door. Without turning on any lights, she got up,
went to the door, opened it, and encountered a man dressed in
all black, who was wearing a hat and a mask that concealed his
face. The intruder (the defendant) grabbed her and held an
object that seemed to be a screwdriver against her neck. Sophie
began screaming, which woke her husband. The defendant demanded
money from Sophie, and took her into a bathroom, where she gave
him the forty-nine dollars that she had on hand. The defendant
brought her back into the bedroom and pushed her down onto the
bed.
As one of the victims was a minor child, and the family 2
share a last name, we refer to all of the family members by pseudonyms. 4
While Sophie was getting the money from the bathroom, she
heard what sounded like her husband being beaten. When Jack had
gotten out of bed to help his wife, a second intruder, Davis,
had struck him on the head with a club or bat that broke upon
impact. Davis then held Jack down, choking him and telling him
to "shut up." Eventually Jack was able to get to his feet, but
in the subsequent struggle, he fell and "split open" the top of
his head on a bureau. Davis then stabbed Jack's left hand with
the jagged edge of the broken club, severing tendons and nerves.
No lights were on in the bathroom or the bedroom during the
struggle, leaving the bedroom "very dark," so that Sophie was
only able to see silhouettes. The man fled the room as Jack
attempted to defend himself by hitting the man on the back and
neck with the broken club. Jack ran down the hallway after him.
The Smiths' son Alex also had been awakened by his mother's
screams. He yelled and began turning on lights, at which point
the defendant apparently fled from the house. Alex grabbed a
knife from the side of his bed and ran into the hallway, where
he heard his mother yelling to him to call 911. He returned to
his room and attempted to call, but could not get through. Alex
went back out into the hallway and encountered Davis, who also
was fleeing from the Smiths' bedroom. Alex pursued Davis into
the kitchen, tackled him, and stabbed him in the torso. Sophie
attempted to call the police from a landline telephone in the 5
family's den, but there was no dial tone. She returned to help
Alex, who was wrestling with Davis on the kitchen floor.
Covered in his own blood, Jack joined them. Davis managed to
seize the knife from Alex's hand and, after threatening the
family, ran from the house. At that point, Sophie was able to
reach a 911 operator on a cellular telephone.3
During the fight in the kitchen, Sophie injured her knee
while kicking Davis in an effort to help her son; she required
twenty-five to thirty-five stitches and, sometime later, surgery
on her knee. Alex's finger had been cut when he and Davis
struggled over the knife, and Alex required seven stitches.
Jack sustained large gashes on his jaw and head, which had to be
sutured and stapled; a pierced hand, which also had to be
stitched and stapled; a broken nose; and bruises on his face and
upper chest.
There was no obvious sign of forced entry into the Smiths'
house.4 The house had an attached garage, with a door giving
3 It later was discovered that a landline telephone in the kitchen had been unplugged from the wall.
4 An officer walking around the house after the Smiths had been taken to the hospital noticed that one side of the house had "a lot of sliding glass doors." The front door and all of the sliding glass doors were locked, except for one sliding door that led directly into the parents' bedroom, which was ajar. The screen door over the locked sliding glass door "had been pulled open" and was found open approximately four or five inches. 6
access from the interior of the garage to the kitchen. It
appeared that the defendant and Davis likely entered and left
the house through this door. Entry to the garage from the
outside was through an ordinary door that usually was unlocked
during the summer; the larger door for vehicles had been open
when Alex came home, and he closed it upon his return. The
intruders appeared to have attempted to enter the garage through
a window; they had dragged a chair up to it and had removed a
screen. Although the interior door from the garage to the house
was locked, Alex had left his keychain, which contained a house
key, in a truck parked in the garage. After the fight, the
Smiths saw Davis flee the kitchen through the door to the
garage; police later found a trail of blood on the garage floor.
Investigating officers also found Alex's keychain lying in the
grass outside the house.
A screwdriver was lying on the garage floor under one of
the parked vehicles. Sophie testified that the family's
screwdrivers were kept in a toolbox in the garage, and that none
had been left on the floor when she went to bed that evening.
She also testified that the screwdriver found on the garage
floor was larger than the one that the defendant had held to her
throat. Police did not find any smaller screwdrivers in the
garage or the house. At trial, the prosecutor argued that while
the screwdriver found on the floor was not the one used in 7
robbing Sophie, the presence of a screwdriver on the garage
floor was evidence that the intruders had gone through the
family's toolbox and, inferentially, that the defendant had
taken the screwdriver he used as a weapon.
Police were dispatched to the defendant's apartment late in
the evening of the following day, after Davis, who was staying
with the defendant, sought emergency medical attention for his
stab wounds. When police arrived at the apartment building,
Davis came to meet them outside, carrying bloody paper towels,
with blood-soaked paper towels wrapped around his torso and a
bandage on his arm. After the officers summoned an ambulance to
take Davis to the hospital, they spoke with an occupant of the
building from which Davis had emerged and learned that Davis was
staying at the defendant's apartment in that building.
Deoxyribonucleic acid (DNA) evidence eventually implicated both
Davis and the defendant in the crimes against the Smiths. Among
other items seized, DNA collected from a face mask and a
baseball cap found near the Smiths' home matched Tinsley's DNA
profile. DNA from a bloodstain on the Smiths' driveway matched
Davis's DNA profile.
At trial, the defendant testified on his own behalf. He
denied any involvement in the crimes. On the second day of
deliberations, the jury submitted a question to the judge,
worded as follows: 8
"Armed home invasion element number [three]: One, does entry into the attached garage constitute entry into the dwelling house; two, does passing from the attached garage into the house constitute entering the dwelling place?"
After consulting with the attorneys for both parties, the judge
instructed the jury that the answer to both questions was "yes."
Later that day, the jury returned verdicts of guilty on all
counts.
The judge sentenced the defendant to a term of from twenty
to thirty years in State prison on the charge of armed home
invasion (count 4); ten to fifteen years' imprisonment on the
charge of armed burglary (count 5), from and after the sentence
on count 4; ten to fifteen years for the conviction of armed
robbery while masked (count 1), from and after the sentence on
count 4; two to five years' imprisonment on the conviction of
assault and battery by means of a dangerous weapon (count 2),
concurrent with the sentence on count 1; and two and one-half
years in a house of correction for the assault and battery
(count 3), concurrent with the sentence on count 1.
2. Posttrial proceedings. In September of 2007, the
defendant appealed from his sentence to the Appellate Division
of the Superior Court. See Commonwealth v. Barros, 460 Mass.
1015, 1015 (2011), citing G. L. c. 278, § 28B. In June of 2008,
the Appellate Division issued an order increasing the
defendant's sentence on the conviction of armed home invasion, 9
from twenty-five to thirty years of imprisonment, to thirty to
thirty-five years, but also made all of the other sentences
concurrent with that sentence, rather than consecutive. The
over-all period of incarceration thus was decreased, from an
aggregate forty to sixty years, to an aggregate thirty to
thirty-five years. The Appeals Court affirmed the convictions.
Commonwealth v. Tinsley, 73 Mass. App. Ct. 1120 (2009).
In August of 2019, the defendant moved for a new trial on
the ground that the Commonwealth had not produced sufficient
evidence that he had been armed with a dangerous weapon prior to
entering the Smiths' house, as required by G. L. c. 265, § 18C,
given that he appeared to have found the screwdriver he used in
the armed robbery in the attached garage. The judge concluded
that the home invasion statute was inapplicable in the
circumstances because the defendant had armed himself only after
he entered the garage, and thus that the conviction had to be
vacated. The judge also noted that his own erroneous answer to
the jury's question had created a substantial risk of a
miscarriage of justice. The Commonwealth appealed, and we
transferred the case from the Appeals Court on our own motion.
3. Discussion. The defendant argues that his conviction
under the armed home invasion statute was invalid, as there was
insufficient evidence that he was armed when entering the
dwelling. We agree that this conviction cannot stand. The 10
defendant also maintains that principles of double jeopardy
preclude him from being resentenced on the remaining
convictions. We conclude that the defendant may be resentenced,
so long as any resentencing takes place before he completes
serving the sentences on any convictions for which a new
sentence would be imposed.
a. Conviction of armed home invasion. A judge "may grant
a new trial at any time if it appears that justice may not have
been done." Mass. R. Crim. P. 30 (b), as appearing in 454 Mass.
1501 (2009). Our review of a decision on a motion for a new
trial generally "is limited to whether the judge's decision
constitutes an abuse of discretion or contains any other error
of law," with special deference given to both factual findings
and the ultimate decision where, as here, the motion judge was
also the trial judge. Commonwealth v. Lane, 462 Mass. 591, 597
(2012).
The key question at issue in this case is one of statutory
interpretation, which we review de novo. Lazlo L. v.
Commonwealth, 482 Mass. 325, 328 (2019). The home invasion
statute, G. L. c. 265, § 18C, provides:
"Whoever knowingly enters the dwelling place of another knowing or having reason to know that one or more persons are present within or knowingly enters the dwelling place of another and remains in such dwelling place knowing or having reason to know that one or more persons are present within while armed with a dangerous weapon, uses force or threatens the imminent use of force upon any person within 11
such dwelling place whether or not injury occurs, or intentionally causes any injury to any person within such dwelling place shall be punished by imprisonment in the state prison for life or for any term of not less than twenty years."
The offense thus has four elements: (1) a knowing entry into or
remaining in another's dwelling, (2) with the knowledge that at
least one person is present in the dwelling and (3) while being
armed with a dangerous weapon, followed by (4) the use or
imminent threat of force against someone in the dwelling, or
causing of an injury. See Commonwealth v. Doucette, 430 Mass.
461, 465–466 (1999).
There is no dispute in this case that the first, second,
and fourth elements have been met. The judge found that the
defendant entered the Smiths' house through the garage, and
there armed himself with a screwdriver, before passing through
the interior door into the kitchen. See Doucette, 430 Mass. at
465–466. The question is whether, on these facts, the defendant
"enter[ed] the dwelling place of another . . . while armed with
a dangerous weapon." G. L. c. 265, § 18C. See Commonwealth v.
Ruiz, 426 Mass. 391, 392 (1998). In Ruiz, supra at 392-393, we
held that a "plain reading of" G. L. c. 265, § 18C, "require[s]
the Commonwealth to prove that the defendant was armed with a
dangerous weapon at the time of entry" (emphasis added). See
id. at 391-393 (no liability for armed home invasion where
defendant entered apartment, seized victim's crutch, and then 12
beat victim with it). Thus, if the defendant's entry into "the
dwelling place of another" occurred when he first entered the
garage attached to the Smiths' house, he was not "armed with a
dangerous weapon" at that point, and therefore cannot be liable
for armed home invasion.5
The term "dwelling place of another" is not defined in
G. L. c. 265, § 18C. Where a term is not defined in the
language of the statute, we look to the plain and ordinary
meaning of the word. "We derive the words' usual and accepted
meaning from sources presumably known to the statute's enactors,
such as their use in other legal contexts and dictionary
definitions." Commonwealth v. Montarvo, 486 Mass. 535, 536
(2020), quoting Commonwealth v. Garvey, 477 Mass. 59, 61-62
(2017). See Commonwealth v. Hanson H., 464 Mass. 807, 810
(2013) (when word is not defined in statute, we "interpret it
according to its ordinary meaning," but "we look to the language
of the entire statute, not just a single sentence, and attempt
to interpret all of its terms 'harmoniously to effectuate the
intent of the Legislature'" [citations omitted]).
5 The offense of armed burglary, by contrast, applies specifically to a defendant who was "armed with a dangerous weapon at the time . . . of breaking or entry [into a dwelling house], or so arm[ed] himself in such house." See G. L. c. 266, § 14. 13
Accordingly, we have treated the phrase "the dwelling place
of another" as equivalent to the term "dwelling house" that is
used in the related statutes defining various types of burglary.
See G. L. c. 266, §§ 14-15; Doucette, 430 Mass. at 467 ("The
term 'dwelling house' as used in the context of burglary always
has been construed broadly, . . . and, for purposes of the
burglary statute, 'an apartment dweller's "dwelling house" does
include secured common hallways'"; "as the physical features of
a multi-family residential structure will vary from case to
case, so too will the determination whether the common areas of
that structure, even if locked, constitute the tenant's
'dwelling house'" [citations omitted]). See, e.g., Commonwealth
v. Marshall, 65 Mass. App. Ct. 710, 714–715 (2006) (referring
"to the closely related burglary statutes . . . in order to
ascertain the meaning of 'dwelling place of another'").
The term "dwelling house," in turn, "has been construed
broadly" for purposes of the burglary statutes. See
Commonwealth v. Goldoff, 24 Mass. App. Ct. 458, 462-463 (1987)
(secured common hallways in apartment building were part of
dwelling house). Indeed, at common law, "every house for the
dwelling and habitation of man" was taken to include not only
the dwelling house proper, "but also the outhouses, such as
barns, stables, cow-houses, dairyhouses, and the like, if they
be parcel of the messuage, though they be not under the same 14
roof, or joining contiguous to it." Devoe v. Commonwealth, 3
Met. 316, 325 (1841). See Commonwealth v. Correia, 17 Mass.
App. Ct. 233, 236 (1983) (given "historical background of the
burglary statutes," motel meets definition of "dwelling house").
In light of these precedents, we agree with the motion judge
that the defendant's entry into the Smiths' attached garage
constituted an entry into "the dwelling place of another."
The Commonwealth does not contest that, under the armed
home invasion statute, entry into the garage constituted entry
into the Smiths' "dwelling place." Rather, it argues that the
subsequent entry from the garage into the house through the
locked interior door was a separate and independent entry into
"the dwelling place of another" within the meaning of the
statute, at which point the defendant was armed. In essence,
the Commonwealth argues that the element of knowing entry in the
armed home invasion statute should apply separately to any entry
into a reasonably discrete or separate area within a structure,
regardless of any earlier entries.
In support of this position, the Commonwealth points out
that, while the principal purpose of the burglary statutes is to
protect property, that of the armed home invasion statute is to
protect persons, as evidenced by the placement of the two
offenses in different chapters of the General Laws, titled
"Crimes Against Property" and "Crimes Against the Person." See 15
Commonwealth v. Antonmarchi, 70 Mass. App. Ct. 463, 467–468
(2007). Given this distinct purpose, the Commonwealth maintains
that the Legislature deliberately sought to criminalize a wider
range of conduct under the armed home invasion statute, and
signaled this intent by employing the less common term "dwelling
place" rather than the familiar phrase "dwelling house" used in
the burglary statutes.
We agree with the motion judge that this broad reading of
"dwelling place" potentially would allow a defendant's crossing
into any "room, closet, or ancillary space" inside a single
house to be considered a separate entry that could support a
conviction of armed home invasion. Even if, as the Commonwealth
suggested at argument before us, the question whether a place is
sufficiently discrete enough to be considered a separate
dwelling is a "matter of common sense," this reading nonetheless
would permit many different "entries" to take place during one
incidence of home invasion. Such an outcome itself would be
contrary to common sense, and also essentially would overturn
our decision in Ruiz, 426 Mass. at 393, that, to be convicted
under the statute, a defendant must be armed "at the time of
entry" into the dwelling. "A statute or ordinance should not be
construed in a way that produces absurd or unreasonable results
when a sensible construction is readily available." Manning v.
Boston Redev. Auth., 400 Mass. 444, 453 (1987). "If a sensible 16
construction is available, we shall not construe a statute to
make a nullity of pertinent provisions or to produce absurd
results." Flemings v. Contributory Retirement Appeal Bd., 431
Mass. 374, 375–376 (2000), citing Manning, supra, and cases
cited.
Moreover, as noted, our prior cases have treated "dwelling
house" and "dwelling place" as having essentially the same
meaning. Doucette, 430 Mass. at 467. The presumption of
synonymy is supported by the use of the term "dwelling house"
rather than "dwelling place" in G. L. c. 265, § 18A (armed
assault in a dwelling), a statute concerning an offense against
the person, and that is "functionally much closer" to the armed
home invasion statute than are the burglary statutes. See
Antonmarchi, 70 Mass. App. Ct. at 467. Although "dwelling
house" and "dwelling place" may not have an identical meaning in
every circumstance, see Commonwealth v. Mahar, 430 Mass. 643,
652 n.5 (2000) (term "enters" is not "entirely the same" for
burglary and armed home invasion), their meanings are not as
widely divergent as the Commonwealth here suggests. The use of
slightly different terms in multiple statutes does not create a
presumption of different meanings. See Commonwealth v.
Williamson, 462 Mass. 676, 682 (2012) (canon that different
terms are presumed to have different meanings applies to terms
used in same statute). "The Legislature need not, at its peril, 17
use the exact same formula for each statutory provision in order
to achieve a particular result." Commonwealth v. Vega, 449
Mass. 227, 232–233 (2007).
Here, because there was no evidence that the defendant
armed himself with a weapon before he entered the Smiths' home,
he cannot be convicted of armed home invasion. See Commonwealth
v. Latimore, 378 Mass. 671, 677 (1979) (taken in light most
favorable to Commonwealth, evidence must be sufficient for "jury
to infer the existence of the essential elements of the crime
charged" [citation omitted]). Thus, there was no abuse of
discretion in the allowance of the defendant's motion for a new
trial.
b. Resentencing. "[T]he Double Jeopardy Clause prohibits
retrial after a conviction has been reversed because of
insufficiency of the evidence." United States v. DiFrancesco,
449 U.S. 117, 131 (1980). See Commonwealth v. Sanchez, 485
Mass. 491, 507 n.9 (2020); Marshall v. Commonwealth, 463 Mass.
529, 538 (2012). The question remains whether, as the defendant
argues, principles of double jeopardy also prevent him from
being resentenced on the remaining convictions.
At the original sentencing hearing, the trial judge
emphasized the severity of the crimes; he noted that a malicious
entry into one's home is what "we all fear," and decided that
the defendant should serve successive sentences for armed home 18
invasion, armed burglary, and armed and masked robbery. Given
the combination of consecutive and concurrent sentences, the
aggregate total sentence was for from forty to sixty years in
prison. The Appellate Division of the Superior Court then
revised the sentence for the conviction of armed home invasion
from thirty to thirty-five years of imprisonment, with all of
the other sentences to be served concurrently.
The Commonwealth argues that vacating the conviction (and
thus the sentence) for armed home invasion requires that the
case be remanded for resentencing on the remaining convictions.
In support of its position, the Commonwealth points to
Commonwealth v. Leggett, 82 Mass. App. Ct. 730, 735 (2012), in
which the Appeals Court held that "subtraction of one or more of
[a sentencing] scheme's interdependent elements may disrupt its
intended proportions and purposes," such that when an "appellate
court reverses one or more of several convictions resulting from
the same trial, it may remand the case to the trial judge for
reconsideration of the entire sentencing structure." The
defendant argues that his sentences (which have been concurrent
since June of 2008) are not actually "interdependent," and that
imposing longer sentences on the remaining charges would violate
principles of double jeopardy.
Sentences are interdependent when they function to realize
an "over-all concept in sentencing" (citation omitted), 19
Commonwealth v. Parrillo, 468 Mass. 318, 321 (2014), for
convictions arising out of a single incident, see Shabazz v.
Commonwealth, 387 Mass. 291, 292 & 295 n.4 (1982).
Interdependent sentences "constitute[] an integrated package,
each piece dependent on the other, which cannot be separated."
Commonwealth v. Renderos, 440 Mass. 422, 435 (2003). In such
packages, the primary sentence to which other sentences are tied
is referred to as the "anchor sentence." See Wolcott,
petitioner, 32 Mass. App. Ct. 473, 475-477 (1992). In Leggett,
82 Mass. App. Ct. at 732, for instance, the defendant originally
was sentenced (following revision by the Appellate Division) to
a term of from nineteen to twenty years for armed assault with
intent to murder (the anchor sentence), with concurrent shorter
sentences on two firearms convictions and a conviction of
assault and battery by means of a dangerous weapon, all arising
from a single incident.
Here, the original sentence of armed home invasion
functioned as an "anchor" sentence for the other two most
serious offenses, which themselves then served to anchor the
other, shorter sentences. The Appellate Division clearly had an
"over-all concept" in mind when it modified the defendant's
sentences so that they all ran concurrently, but lengthened the
sentence on the armed home invasion by five years. The result
of making each of the sentences concurrent, in combination with 20
the five-year increase on both ends of the range on the sentence
for armed home invasion, was to reduce the maximum possible time
the defendant would serve by almost one-half, and to reduce the
minimum time from forty to thirty years.
We turn, then, to the question whether double jeopardy
principles bar the imposition of new, longer sentences on the
remaining convictions. The guarantee against double jeopardy in
the Fifth Amendment to the United States Constitution involves
"three independent protections. 'It protects against a second
prosecution for the same offense after acquittal. It protects
against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for
the same offense.'" Commonwealth v. Selavka, 469 Mass. 502, 509
(2014), quoting Aldoupolis v. Commonwealth, 386 Mass. 260, 271-
272, cert. denied, 459 U.S. 864 (1982), S.C., 390 Mass. 438
(1983).6 The third protection generally implies that "[a]fter a
sentence is final, . . . a defendant may not be sentenced again
for that same conviction." Commonwealth v. Goodwin, 458 Mass.
11, 19–20 (2010).
6 "Unlike the United States Constitution, the Massachusetts Declaration of Rights does not include a double jeopardy clause, but our statutory and common law have long embraced the same principles and protections." Kimbroughtillery v. Commonwealth, 471 Mass. 507, 510 (2015). 21
Nonetheless, it is long established in the Commonwealth
that "a successful challenge to one sentence imposed at the same
time as other sentences . . . opens up all the interdependent,
lawful sentences for reconsideration without violating the
double jeopardy clause." Shabazz, 387 Mass. at 295–296. That
is so because, in such cases, a "dependent relationship exists
between the different components of a sentencing scheme," so
that "subtraction of one or more of the scheme's interdependent
elements may disrupt its intended proportions and purposes."
Commonwealth v. Walters, 479 Mass. 277, 283 (2018), quoting
Leggett, 82 Mass. App. Ct. at 735. Moreover, although the
double jeopardy clause "represents a constitutional policy of
finality for the defendant's benefit," Goodwin, 458 Mass. at 19,
quoting Aldoupolis, 386 Mass. at 274, when a defendant files a
motion for postconviction relief, the defendant's expectation of
finality in the sentences imposed is diminished, see
Commonwealth v. Cumming, 466 Mass. 467, 471 (2013). 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." Id., quoting Leggett,
supra, at 736-737. See United States v. McClain, 133 F.3d 1191,
1194 (9th Cir.), cert. denied, 524 U.S. 960 (1998) ("A
defendant's expectations regarding finality . . . relate only to
his entire sentence, not the discrete parts"). 22
Double jeopardy principles do impose at least two specific
restrictions on the power to resentence. First, "resentencing
must not result in any increase in the aggregate punishment."
Parrillo, 468 Mass. at 321. See Shabazz, 387 Mass. at 296
(double jeopardy bars "increase in aggregate punishment by
adjustment of unchallenged, final sentences upon the
invalidation of another interdependent sentence"). See, e.g.,
Commonwealth v. Cole, 468 Mass. 294, 310 (2014); Cumming, 466
Mass. at 472. Second, "double jeopardy principles bar
resentencing on any conviction for which the defendant has
already fully served his sentence." Commonwealth v. Sallop, 472
Mass. 568, 570 (2015). See Aldoupolis, 386 Mass. at 272 ("Once
a defendant has served fully the proper sentence prescribed by
law for the offense committed, the State may not punish him [or
her] again").
We note that a number of these cases have involved
resentencing after a successful motion under Mass. R. Crim.
P. 30 (b) by a defendant whose sentence had been determined to
be illegal, but whose convictions themselves were not invalid.
See Goetzendanner v. Superintendent, Mass. Correctional Inst.,
Norfolk, 71 Mass. App. Ct. 533, 537 (2008) (illegal sentence is
one contrary to applicable statute or "premised on a major
misunderstanding by the sentencing judge as to the legal bounds
of his authority"). The same reasoning applies, however, to 23
resentencing after a conviction is reversed on sufficiency
grounds. See Commonwealth v. Scott, 86 Mass. App. Ct. 812, 816-
817 (2015) (where one of defendant's five convictions was
reversed for insufficient evidence, Parrillo, 468 Mass. at 321,
governed, permitting resentencing solely on one conviction for
which defendant had not completed serving sentence). The bar on
increases in aggregate punishment or in resentencing on
sentences that have been fully served balances the protection of
the defendant's constitutional right to finality of his or her
sentences, Goodwin, 458 Mass. at 19, and "the just demands of a
wronged society" to which the sentences must respond, see
Commonwealth v. Plasse, 481 Mass. 199, 199 (2019), quoting
Commonwealth v. Rodriguez, 461 Mass. 256, 259 (2012). See,
e.g., State v. Martin, 2009 VT 15, ¶¶ 10-11 (resentencing on
surviving count of indictment did not violate double jeopardy).
Under these principles, the defendant may be resentenced on any
of the sentences that he is serving at the time of resentencing,
provided that his aggregate term of incarceration is not
increased.
4. Conclusion. The defendant's conviction of armed home
invasion is vacated and set aside, and judgment shall enter for
the defendant on that charge. The matter is remanded to the
Superior Court for reconsideration of the sentencing scheme on
the remaining convictions. 24
So ordered.