COMMONWEALTH vs. PAUL SIMMONS.

DUFFLY, J. On September 22, 1981, the defendant pleaded guilty to twelve indictments. [Note 1] He received concurrent sentences of eight to twelve years in State prison on six of the convictions; the remaining six convictions were "placed on file." [Note 2]

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That is to say, sentencing was suspended indefinitely with respect to the filed convictions, including the armed assault with intent to rob conviction on indictment no. 81-1918 that is the subject of this appeal.

The defendant served his time and was released; soon thereafter, on December 5, 1986, he was charged with a subsequent offense of armed robbery (indictment no. 86-6302). This prompted the Commonwealth to bring forward the filed conviction for armed assault with intent to rob. [Note 3] On January 2, 1987, more than five years after pleading guilty, a judge other than the plea judge sentenced the defendant to a committed term of eighteen to twenty years on this revived conviction. [Note 4]

The defendant's motion pursuant to Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), to "vacate sentence, dismiss indictment, and credit defendant for time served under an erroneous sentence," alleged, in essence, that the eighteen to twenty year term imposed on the previously filed conviction was an illegal sentence. It is from the order denying this motion that the defendant now appeals, arguing that (1) he was denied his right to speedy sentencing guaranteed under the State and Federal Constitutions; (2) procedures in connection with sentencing on the indictment violated his procedural and substantive due process rights; and (3) the motion judge impermissibly considered an unproven accusation at the time of sentencing. [Note 5]

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Discussion. The procedure that lies at the root of this appeal -- indefinitely postponing sentencing with respect to a criminal conviction by placing it "on file" after a finding of guilt -- has been recognized, and approved of, as a common-law custom dating back to the earliest days of the Commonwealth. Initially developed as a form of probation, the practice was one of several ameliorative remedies to harsh legal punishments. See Grinnell, Probation as an Orthodox Common Law Practice in Massachusetts Prior to the Statutory System, 2 Mass. L.Q. 591, 592-612 (1917) (reprinted as Grinnell, The Common Law Origin of Probation in Massachusetts and, Before 1917 and the Federal Probation Act, in the First Federal Circuit, 45 Mass. L.Q. 70 [1960]). [Note 6] The practice was referred to well over a century ago in Commonwealth v. Dowdican's Bail, 115 Mass. 133, 136 (1874):

"It has long been a common practice in this Commonwealth, after verdict of guilty in a criminal case, when the court is satisfied that, by reason of extenuating circumstances, or of the pendency of a question of law in a like case before a higher court, or other sufficient cause, public justice does not require an immediate sentence, to

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order, with the consent of the defendant and of the attorney for the Commonwealth, and upon such terms as the court in its discretion may impose, that the indictment be laid on file; and this practice has been recognized by statute. Sts. 1865, c. 223; 1869, c. 415, § 60. [Note 7] Such an order is not equivalent to a final judgment . . . but is a mere suspending of active proceedings in the case . . . and leaves it within the power of the court at any time, upon the motion of either party, to bring the case forward and pass any lawful order or judgment therein."

Although it is still referred to in numerous statutes, [Note 8] thereby

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implying statutory authority for the practice, no statute defines the circumstances in which a conviction may be placed on file, and there are no codified procedures for reviving a filed conviction. [Note 9]

Our decisional law has given continued vitality to the practice in certain circumstances, see, e.g., Commonwealth v. Bianco, 390 Mass. 254, 255-259 (1983); Commonwealth v. Pelletier, 62 Mass. App. Ct. 145, 145-146 (2004), but the procedure of removing a filed conviction from the file in order to impose a sentence of incarceration has not been fully articulated. Moreover, although it has been held that a defendant's consent to placing a conviction on file is required, see Commonwealth v. Delgado, 367 Mass. 432, 438 (1975) (consent required because defendant loses, among other rights, right of appeal, which is deferred so long as conviction remains on file), the precise contours of that consent have not been delineated.

By and large, convictions placed on file have tended to remain on file. See, e.g., United States v. Hines, 802 F. Supp. 559, 572 (D. Mass. 1992), quoting from Pino v. Nicolls, 215 F.2d 237, 244-245 (1st Cir. 1954), rev'd on other grounds sub nom. Pino v. Landon, 349 U.S. 901 (1955) ("Though theoretically it may be possible . . . to take [a] case from the files and make a final disposition of it, if we take account of the ordinary modes of the procedure in the local courts it must be concluded that there is every probability that, once a case is placed on file, it will remain in that status undisturbed and probably forgotten").

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The defendant does not pose a general challenge to the procedure of placing convictions on file. [Note 10] The focus in his appeal is, rather, on the procedure of reviving a filed conviction upon the occurrence of a subsequent offense, where no conditions to keeping a conviction on file were articulated and agreed to. We agree that the conviction could not be brought forward for sentencing in these circumstances.

The procedure of reviving a filed conviction has been approved in only two circumstances: (1) when a related conviction is reversed on appeal; and (2) upon a breach of explicit conditions imposed in connection with the filing. We have found no reported decision in Massachusetts in which an appellate court was asked to consider the revival of filed cases in circumstances facing the defendant here, and we conclude that there is nothing in our statutory or decisional law that would condone such a practice.

1. Sentencing on related convictions. By far the most common circumstance in which a filed conviction is brought forward is when the conviction upon which the defendant was sentenced is reversed on appeal and the defendant thereafter is sentenced on the filed conviction. In the typical case, a defendant is charged with several offenses arising from the same event, all of which are tried together; following conviction of these separate charges, convictions of the less serious charges are

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filed with the defendant's consent and sentences are imposed on the more serious charges. See, e.g., Commonwealth v. Boone, 356 Mass. 85, 88 (1969); Commonwealth v. Bianco, 390 Mass. at 255; Commonwealth v. Owens, 414 Mass. 595, 596 (1993); Commonwealth v. Torres, 424 Mass. 153, 154 n.1 (1997); Commonwealth v. Araujo, 38 Mass. App. Ct. 960, 960, 960 n.2 (1995). [Note 11] If the conviction on which the sentence is imposed is reversed on appeal, the conviction on the less severe charge is available to be brought forward in order to provide an alternative basis for sentencing.

That was the situation in Commonwealth v. Bianco, supra, on which the Commonwealth chiefly relies to support its position that the procedure here was valid. In that case, each of the defendants was convicted on two indictments charging involuntary manslaughter and one indictment charging assault and battery; they each received concurrent two and one-half year sentences on the manslaughter indictments, while the assault and battery convictions were placed on file. Id. at 255. In the defendants' prior appeal, Commonwealth v. Bianco, 388 Mass. 358 (1983), the court reversed the two manslaughter convictions and ordered judgment to enter for the defendants. The court stated that, on remand, "the judge in the Superior Court is permitted, but not required, to sentence the defendants on [the assault and battery convictions]." Id. at 370. The filed

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convictions were brought forward for sentencing immediately after the defendants' appeals were resolved and the defendants were each sentenced to eighteen months in a house of correction. Commonwealth v. Bianco, 390 Mass. at 256.

The court upheld sentencing on the filed convictions in these circumstances, rejecting the defendants' claims that it was error to remove the indictments from file "in the absence of any showing of intervening misconduct by them." Id. at 257. The court concluded that, even "[a]ssuming, arguendo, that there is a constitutional right to speedy sentencing, no such constitutional right has been infringed," id. at 258, as the Commonwealth requested sentencing on the filed convictions six days after entry of the rescript reversing the convictions for the greater offenses, and that "it is always within the power of the court to remove [a conviction] from the file and to impose a sentence thereon." Id. at 259.

There are crucial differences between the present case and the situation in Bianco, where, by virtue of the defendants' successful appeals of the manslaughter convictions, the trial judge's sentencing scheme was fundamentally altered. It is reasonable to assume that the original decision to place the assault and battery convictions on file in Bianco was informed, at least in part, by the fact that committed sentences were imposed on the manslaughter convictions. In cases involving multiple convictions, sentences are often interrelated. See, e.g., Commonwealth v. Delgado, 367 Mass. at 439-440 (while ordering imposition of sentence or other disposition on filed conviction where consent to filing was lacking, court stated: "In the interest of justice, and considering the obvious intentions of the judge who imposed the original sentence, no sentence should be imposed which results in any period of incarceration of the defendant beyond that which he is required to serve on the sentence previously imposed as to [related] indictment"); Commonwealth v. Shabazz, 387 Mass. 291, 296 (1982) (restructuring of interdependent lawful sentences precluded as unfair where, after determination that from-and-after life sentence was constitutionally barred, proposed restructuring would impose more severe aggregate punishment than was in place when defendant brought his challenge to unlawful sentence); Commonwealth v. Williams, 23 Mass. App. Ct. 716, 720 (1987).

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In Bianco, once sentences on the manslaughter convictions were vacated, the trial judge was free, consistent with due process principles, to impose sentences on the filed charges. Commonwealth v. Bianco, 390 Mass. at 259 (judge's discretion to consider broad range of information in sentencing is limited by due process clause). In such a case, sentencing on the revived charge not only is consistent with the original sentencing scheme contemplated by the trial judge, but also would take place within a determinate and reasonably prompt time frame, that is, upon the conclusion of the defendant's appeal from the conviction for which he had originally been sentenced.

A practice that permits a prosecutor to seek sentencing a decade or more after the defendant had served his time on related convictions, on the basis of subsequent events or information deemed by the prosecutor to warrant revival but unconnected to the filed conviction, invites not only arbitrary and capricious conduct, but raises the concern that conduct triggering the revival will unduly influence the sentence on the filed conviction. See ibid. ("Due process requires that in sentencing a judge must not punish a defendant for conduct other than that for which he was convicted"). See also Commonwealth v. LeBlanc, 370 Mass. 217, 222-223 (1976); Commonwealth v. Henriquez, 440 Mass. 1015, 1016 (2003) (sentence as punishment for other offenses is improper). [Note 12]

2. Filing subject to conditions. There is no claim on the part

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of the Commonwealth in this case that specific conditions for placing the convictions on file had been delineated and that these conditions had been agreed to by the defendant. Thus, sentencing on the filed conviction did not, in this case, conform to the second set of circumstances in which a revival of filed convictions has been approved.

Early cases describe a system of filing that, by virtue of being subject to conditions, resembles the modern concept of probation. In Commonwealth v. Maloney, 145 Mass. 205, 211 (1887), the court described "the general power of putting a prisoner convicted before them on probation by indefinitely holding the conviction over him, as is done in higher courts by putting an indictment on file" (emphasis added). See Commonwealth v. Dowdican's Bail, 115 Mass. at 136 (following conviction, indictments filed "upon such terms as the court in its discretion may impose"). More recently, our courts have considered and tacitly approved sentencing on convictions placed on file with explicit conditions. See Commonwealth v. Marinucci Bros. & Co., 354 Mass. 743, 745 (1968) ("Upon count 28, no sentence was imposed. We assume that the case could have been taken from the files for the purpose of imposing a sentence, if any default in making restitution had occurred"); Commonwealth v. Pelletier, 62 Mass. App. Ct. at 146-147 (appropriate to bring forward indictment filed with change of plea in order to enforce plea agreement that defendant would not request parole until she had served three years of incarceration). [Note 13]

Based on these decisions, we conclude that -- at least where,

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as here, the filing was in the context of a plea of guilty -- before a conviction may be placed on file with the possibility of later revival upon a further offense, the defendant must, at the time the conviction is placed on file, be informed of such condition and of the definite, and reasonable, time frame within which it is to remain in effect, see note 12, supra, and give his voluntary and informed consent thereto. [Note 14]

Conclusion. Because the filing of the conviction on indictment no. 81-1918 was subject to no specified conditions to which the defendant had consented, it should not have been revived for sentencing. The order denying the defendant's motion to vacate his sentence entered on indictment no. 81-1918 is vacated. A new order granting the motion shall enter. The defendant shall receive credit for time served under the vacated sentence against the sentence imposed on indictment no. 86-6302, the latter to take effect forthwith.

So ordered.