COMMONWEALTH vs. THOMAS H. JARVIS.

COWIN, J. Charged with operating a motor vehicle while under the influence of alcohol (OUI), fourth offense, see G. L. c. 90, § 24(1)(a)(1), the defendant was convicted by a District Court jury of the primary offense. [Note 1] The defendant waived his right to

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a jury trial regarding the portion of the complaint alleging that this was a fourth offense. Because the trial judge previously had acted on motions of the defendant that implicated the prior convictions, [Note 2] the judge allowed the defendant's motion that he recuse from the subsequent offense portion of the trial. Before transferring that part of the case to a second judge, however, the first judge sentenced the defendant to two years in the house of correction, one year committed, the balance suspended for two years, [Note 3] on the primary offense of OUI.

The defendant thereafter moved to dismiss the subsequent offense charge on the ground of double jeopardy. This motion was denied by the second judge, who then conducted a bench trial on the subsequent offense charge, found that the defendant had been convicted on three prior occasions, and returned the case to the first judge for resentencing. On the Commonwealth's motion to revise and revoke the original sentence, the first judge resentenced so that, while the periods of incarceration and probation remained the same, the sentence now reflected that it was imposed for a fourth offense. [Note 4] The defendant appealed. [Note 5] We conclude that, while the procedure followed in this case violated the provisions of G. L. c. 278, § 11A, the defendant neither was put in jeopardy twice for the same offense nor subjected to a substantial risk of a miscarriage of justice. Accordingly, we affirm.

The defendant contends that subjecting him to a sentence enhancement after the imposition of sentence on the primary offense exposed him to additional punishment for the same crime

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and thus violated his right not to be placed in double jeopardy. See Luk v. Commonwealth, 421 Mass. 415, 419 (1995) (double jeopardy clause of Fifth Amendment to United States Constitution prevents "multiple punishments for the same offense"). The prohibition against double jeopardy is recognized in Massachusetts as a matter of common law, see Commonwealth v. Hrycenko, 417 Mass. 309, 316 (1994), and pursuant to statute, see G. L. c. 263, § 7. [Note 6] Although the resentencing by the first judge preserved the parameters of the defendant's original sentence, he argues that the alteration of his conviction to one of a fourth offense subjected him to "additional punishments," thus contravening the prohibition against multiple punishments for the same offense. [Note 7]

The Commonwealth concedes that the first judge violated the directive of G. L. c. 278, § 11A, that sentencing not take place until a bifurcated trial has been completed. The statute, inserted by St. 1967, c. 213, provides in relevant part that "[i]f a defendant is charged with a crime for which more severe punishment is provided for second and subsequent offenses, and the complaint or indictment alleges that the offense charged is a second or subsequent offense [,] . . . [and] there is a verdict or finding of guilty after trial, then before sentence is imposed, . . . [the defendant] shall be entitled to a trial by jury of the issue of conviction of a prior offense . . . . Upon the return of a verdict, after the separate trial of the issue of conviction of one or more prior offenses, the court shall impose the sentence appropriate to such verdict." See Bynum v. Commonwealth, 429 Mass. 705, 708 (1999). Consequently, it is plain that the

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procedure followed in this case was inconsistent with what the Legislature envisioned as the appropriate sequence of events under this enhanced penalty statute.

The Commonwealth contends that the defendant waived any defense of double jeopardy that he otherwise might have had by failing to object when the first judge indicated that he was prepared to impose sentence following the conviction of the primary offense. Indeed, a defense of double jeopardy may be waived. See Commonwealth v. Deeran, 397 Mass. 136, 139 (1986); Commonwealth v. Bennett, 52 Mass. App. Ct. 905, 906 (2001). Ordinarily, it is sufficient to preserve the defense by raising it, as the defendant did here, in a motion to dismiss prior to the second trial. See Commonwealth v. Spear, 43 Mass. App. Ct. 583, 586-587 (1997). That proposition, however, appears to apply to the normal case in which a defendant has no prior notice that he will be subjected to prosecution or sentencing a second time. Here, the defendant requested that the first judge recuse, was informed at the time of the first sentencing that there would be a subsequent proceeding, and arguably should have made his position known at that time.

We need not rely on waiver, however, because the defendant's claim of double jeopardy is unfounded in any event. It has been held that when a sentence is increased in a second proceeding "the application of the double jeopardy clause . . . turns on the extent and legitimacy of a defendant's expectation of finality in that sentence. If a defendant has a legitimate expectation of finality, then an increase in that sentence is prohibited." United States v. Fogel, 829 F.2d 77, 87 (D.C. Cir. 1987). See Commonwealth v. Woodward, 427 Mass. 659, 687 (1998). This has led to a clear exemption of consideration of prior convictions for sentencing purposes from the application of the Federal double jeopardy clause. See Apprendi v. New Jersey, 530 U.S. 466, 476 (2000); Sattazahn v. Pennsylvania, 537 U.S. 101, 111-112 (2003). This follows from the fact that double jeopardy is not implicated unless the prior sentence comes about as the result of acquittal with respect to an essential element required for imposition of the harsher sentence. Sattazahn v. Pennsylvania, supra. In addition, where jeopardy attaches and has not terminated, considerations of double jeopardy are not implicated. Id. at 106.

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Consequently, we conclude that the violation of G. L. c. 278, § 11A, that took place in this proceeding did not subject the defendant to double jeopardy. See Commonwealth v. Zuzick, 45 Mass. App. Ct. 71, 75 (1998) (denying dismissal of subsequent offense portion of complaint on double jeopardy grounds where judge, after primary conviction, sentenced defendant as repeat offender without trial on subsequent offense); Commonwealth v. Owen, 61 Mass. App. Ct. 711, 714 (2004), cert. denied, 544 U.S. 1001 (2005), citing Commonwealth v. Miranda, 441 Mass. 783, 789 n.9 (2004) (holding that trial on second indictment alleging repeat offender count, separate from indictment on primary offense for which defendant was convicted, did not offend principles of double jeopardy). Procedural errors at the sentencing stage do not require dismissal of the subsequent offense portion of the complaint on double jeopardy grounds, although they may call for other forms of relief. See Commonwealth v. Zuzick, supra (vacating subsequent offense guilty verdict and remanding for trial on that portion of complaint); Commonwealth v. Chaplin, 50 Mass. App. Ct. 365, 367-368 (2000) (same); Commonwealth v. Orben, 53 Mass. App. Ct. 700, 706-707 (2002) (same).

Here, there could be no reasonable question that the proceeding had not concluded, and that jeopardy had not terminated, when the first judge imposed sentence following conviction of the primary offense. The defendant was on notice, by virtue of the complaint, that he had been charged with a subsequent offense. The first judge made it clear when he sentenced the defendant that a trial on the subsequent offense portion of the complaint would follow, with a possible effect on the sentence should there be a finding in the Commonwealth's favor after that hearing. That the subsequent offender trial was conducted before a second judge is irrelevant. The defendant could not have had the kind of legitimate expectation in the finality of the original sentence that would support a double jeopardy defense.

Nor, apart from considerations of double jeopardy, does G. L. c. 278, § 11A, require dismissal of that portion of the complaint that alleged a subsequent offense. The defendant relies on Bynum v. Commonwealth, 429 Mass. at 709-710, in which a repeat offender complaint was dismissed under the provisions of the

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statute, although not on double jeopardy grounds. The defendant's reliance on Bynum is misplaced. In Bynum, id. at 709, the Commonwealth sought to subject the defendant to two separate sentences when the "Legislature called for only a single sentence to be imposed" under the particular statute. Thus, G. L. c. 278, § 11A, does not countenance a sentence after conviction of a primary offense, "and then, years later in a separate proceeding, the imposition of a harsher sentence because the offense was a repeat offense." Id. at 710. In the present case, the conversion of the sentence for the primary offense into a different single sentence for a fourth offense resolved any concerns that were present in Bynum. Likewise, there is no likelihood that the passage of time between the sentence for the primary offense and the sentence for the fourth offense was of such a length that the substituted sentence could be deemed a second or additional sentence. [Note 8]

The proper remedy, in similar circumstances, has been to retain the underlying conviction, vacate the procedurally improper sentence, and proceed in accordance with the provisions of G. L. c. 278, § 11A. See, e.g., Commonwealth v. Zuzick, supra; Commonwealth v. Chaplin, supra at 368; Commonwealth v. McCready, 50 Mass. App. Ct. 521, 525 (2000); Commonwealth v. Orben, supra at 707. This effectively already has taken place. The defendant has been afforded a trial on the subsequent offense portion of the complaint, and has been given a single sentence based on the findings therefrom.

Judgment affirmed.