COMMONWEALTH vs. DAVID A. WILLIAMS.

WARNER, J. After a jury trial in the Superior Court, the defendant was convicted on ten of eleven indictments charging crimes occurring during early morning breaks on June 30,

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1982, into the homes of two elderly widows. The defendant's convictions were affirmed by this court in Commonwealth v. Williams, 18 Mass. App. Ct. 945 (1984). The defendant's sentence appeal to the Appellate Division of the Superior Court was subsequently dismissed. On July 17, 1986, the defendant filed a motion for postconviction relief pursuant to Mass.R.Crim.P. 30(a), 378 Mass. 900 (1979). From the denial without a hearing of that motion by the trial judge, the defendant appeals.

The defendant was sentenced to M.C.I., Walpole (now Cedar Junction), to a term of twenty to thirty years for armed assault of victim no. 1 in a dwelling house, and to concurrent terms of twenty to thirty years for armed robbery of victim no. 1 and for armed assault in a dwelling house and armed robbery of victim no. 2. The defendant received lesser sentences on the remaining five convictions, all to run concurrently with the sentence on the conviction for the armed assault in a dwelling house of victim no. 1. In addition, the defendant was sentenced to life imprisonment on a conviction of aggravated rape of victim no. 1, that sentence to be served from and after the four (three concurrent with the first) twenty to thirty year sentences. In his motion for postconviction relief and in this appeal, the defendant argues that the consecutive sentence for aggravated rape was unlawful because (1) consecutive sentences for armed robbery and aggravated rape of victim no. 1 could not be imposed where the armed robbery was the aggravating element of the rape conviction; and (2) the judge's instructions allowed the jury to find the defendant guilty of aggravated rape on an element of the offense not alleged in the indictment. [Note 1]

The indictment charging the defendant with rape of victim no. 1 stated that the rape was committed "during the commission

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of an offense defined in either Section 15A [assault and battery by means of a dangerous weapon] or 17 [armed robbery] of Chapter 265 of the Massachusetts General Laws." A rape which occurs during the commission of either of the specified crimes (among others) constitutes aggravated rape, G. L. c. 277, Section 39, as amended by St. 1980, c. 459, Section 8, and an offender may be punished by penalties more severe than in the case of a conviction of simple rape. G. L. c. 265, Section 22, as appearing in St. 1980, c. 459, Section 6. At a charge conference, it was agreed that the rape indictment would go to the jury with armed robbery as the aggravating factor, and the judge so instructed the jury. [Note 2] As noted, the jury returned verdicts of guilty on both the armed robbery and the aggravated rape indictments.

1. In a series of felony-murder cases, the Supreme Judicial Court has held that, under our general common law rule, "where convictions are returned under two statutes, unless `each statute requires proof of an additional fact which the other does not,' consecutive sentences may not be imposed" (emphasis supplied). Commonwealth v. Wilson, 381 Mass. 90, 124 (1980), quoting from Morey v. Commonwealth, 108 Mass. 433, 434 (1871). See Commonwealth v. Stewart, 375 Mass. 380, 390-393 (1978); Commonwealth v. Cameron, 385 Mass. 660, 670 (1982); Shabazz v. Commonwealth, 387 Mass. 291, 293-295 (1982); Commonwealth v. Ambers, 397 Mass. 705, 710 (1986). The defendant argues that, under the "same evidence" rule, consecutive sentences could not be imposed on the armed robbery and aggravated rape of victim no. 1 convictions, as the conviction for armed robbery required proof of no fact additional to those necessary for the conviction of rape during the commission of armed robbery. We agree. See Commonwealth v. Wilson, supra ("[W]henever the possibility exists that a jury might have reached a verdict of murder in the first degree on the basis of a felony-murder theory, a consecutive sentence may not be imposed for the underlying felony"). As in Shabazz v. Commonwealth, supra at 294, "we find no `clear

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indication' (Albernaz v. United States, [450 U.S. 333, 340 (1981)] of a legislative intent, contrary to our general common law rule, to impose multiple punishments for these two crimes."

The defendant contends that the appropriate remedy is to vacate the consecutive sentence imposed on the aggravated rape conviction and to order that the sentence be reimposed to run concurrently with the sentence for armed robbery. [Note 3] This is similar to the dispositions which have been ordered in the felony-murder cases just cited. Compare, for situations where concurrent sentences were held to be improper, Kuklis v. Commonwealth, 361 Mass. 302, 309 (1972); Commonwealth v. White (No. 2), 365 Mass. 307, 311 (1974), cert. denied, 419 U.S. 1111 (1975); Commonwealth v. Jones, 382 Mass. 387, 395 (1981) ("We now conclude . . . that the protection against multiple punishments embodied in the Morey test for duplicitous convictions extends as well to the imposition of concurrent sentences for what amounts to the same offense"). See Commonwealth v. Crocker, 384 Mass. 353, 358 n.6 (1981); Commonwealth v. Levia, 385 Mass. 345, 349 n.3 (1982); Stewart v. Commissioner of Correction, 16 Mass. App. Ct. 57, 58 n.2 (1983). ("It appears . . . that in the felony-murder context the Supreme Judicial Court has not considered the principles of Commonwealth v. Jones [, supra,] to be applicable. Thus the `same evidence' rule in this context bars a consecutive sentence but, as yet, not a concurrent one"). Contrast Commonwealth v. Rivera, 397 Mass. 244, 252-254 (1986); Commonwealth v. Vasquez, 11 Mass. App. Ct. 261, 267-268 (1981); Commonwealth v. Sumner, 18 Mass. App. Ct. 349, 352-353 (1984).

In the circumstances, we do not accept the defendant's suggested disposition, although we agree that any sentence imposed on the armed robbery of victim no. 1 conviction must run concurrently with that on the aggravated rape conviction. There is no argument that the life sentence for aggravated rape, as it was to run from and after the sentence for armed assault

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of victim no. 1 in a dwelling house and the concurrent sentences for armed robbery and armed assault in a dwelling house of victim no. 2, is unlawful. Moreover, the sentence for armed robbery of victim no. 1 could have been imposed, consistently with the dispositions in the felony-murder cases, to run concurrently with the aggravated rape sentence. The former sentence would then also have been consecutive to the underlying sentences. We think it proper in this case to order that the sentence on the armed robbery of victim no. 1 conviction be vacated and that a new sentencing hearing be held. If the Superior Court judge determines that there will result no increase in the aggregate of the original sentences, see Shabazz v. Commonwealth, 387 Mass. at 295-296, he may resentence on the armed robbery conviction for the original or a lesser term, the sentence to run concurrently with the sentence for aggravated rape. If the judge determines that there would be such an aggregate increase, he shall place the armed robbery conviction on file without sentencing.

2. In his instructions to the jury, the judge told them that they could find the defendant guilty of aggravated rape if they found a rape committed during the commission of an armed robbery or one which resulted in serious bodily injury. See G. L. c. 265, Section 22(a). The aggravating element of "serious bodily injury" was not charged in the indictment. The defendant did not object to the instruction in this respect and did not argue the issue in his direct appeal. 18 Mass. App. Ct. 945 (1984). See Commonwealth v. Antobenedetto, 366 Mass. 51, 58 (1974); Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 14 (1986). The Commonwealth concedes in this appeal that this instruction was in error. The defendant argues that there was a jurisdictional defect that can be raised at any time, as the defendant was convicted on an indictment which failed to allege an element of the crime on which the judge charged the jury. The defendant contends that the appropriate relief is a remand for resentencing on so much of the indictment as charges the lesser included offense of rape. The defendant's reliance on the cases which he cites is misplaced. See Commonwealth v. Andler, 247 Mass. 580, 582 (1924) (complaint set

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forth no crime); Commonwealth v. Burns, 8 Mass. App. Ct. 194, 195-196 (1979) (indictment failed to allege essential element of crime); Commonwealth v. Rowe, 18 Mass. App. Ct. 926 (1984) (same).

Assuming, without deciding, that the issue is properly before us, the short answer to the defendant's argument is that (1) the indictment properly charged aggravating elements under G. L. c. 265, Section 22(a), (2) the judge properly instructed the jury on one of those elements -- armed robbery, and (3) the jury convicted the defendant of armed robbery.

The case is remanded to the Superior Court for proceedings consistent with this opinion.

So ordered.