COMMONWEALTH vs. THOMAS F. MCINERNEY.

QUIRICO, J. The defendant, having been convicted of murder, filed a motion to dismiss the indictment for alleged delay in sentencing him thereon. The motion was denied and the defendant appeals from that denial. There was no error.

We review briefly the events which give rise to this appeal. On December 12, 1975, the defendant was convicted of murder in the first degree and was sentenced therefor to life imprisonment at the Massachusetts Correctional Institution

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at Walpole. The sentence was ordered to be served from and after another life sentence which the defendant was then serving for a prior conviction of another murder. [Note 1] On appeal, this court, on July 28, 1977, affirmed the conviction of December 12, 1975, but we held that the evidence was not sufficient to support a finding of the deliberate premeditation necessary for murder in the first degree. We therefore remanded the case to the Superior Court for the entry of a verdict of guilty of murder in the second degree, and for the imposition of a sentence of imprisonment for life as required by G. L. c. 265, Section 2. Commonwealth v. McInerney, 373 Mass. 136, 155 (1977). The rescript from this court was received and docketed by the Superior Court on July 29, 1977, and on the same day the clerk of the latter court sent notice thereof to the defendant's attorney and to the district attorney.

The next development in the case occurred in September, 1978, when the defendant wrote to the clerk of the Superior Court requesting that he be resentenced. On November 24, 1978, the defendant was brought before the Superior Court for resentencing and on that date he filed a motion asking that the indictment against him be dismissed because of the district attorney's delay in moving for resentencing. In an accompanying affidavit the defendant contended that the district attorney had failed to comply with G. L. c. 279, Section 3A, [Note 2] and had deprived him of a claimed constitutional right to speedy sentencing. After a hearing the motion was

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denied. The case is before us on the defendant's appeal from the denial of that motion.

After denying the motion to dismiss the indictment, the judge revoked the life sentence for first degree murder which had been imposed on December 12, 1975, and in accordance with our rescript of July 28, 1977, he reduced the verdict from that of guilty of murder in the first degree to one of guilty of murder in the second degree. He then imposed a new sentence of life imprisonment for the latter offense, and ordered that it be served from and after the life sentence which the defendant was then serving for an earlier murder.

1. General Laws c. 279, Section 3A. The first ground which the defendant alleges in his motion as entitling him to a dismissal of the indictment charging him with murder is that "[t]he District Attorney has failed to comply with G. L. c. 279, Sec. 3A." The defendant contends that after receiving the rescript from this court on July 29, 1977, the clerk of the Superior Court "had a duty to enter the verdict promptly, and, under G. L. c. 279, Section 3A, it would then have been the duty of the district attorney to move for sentencing within seven days."

When the clerk of the Superior Court received the rescript he did all that he was required to do by entering it on the docket of the case and notifying counsel for the parties thereof. Admittedly the district attorney did not move for sentence within seven days thereafter. General Laws c. 279, Section 3A, requires that he do so within seven days "after a plea of guilty or after a verdict of guilty ...." The verdict of guilty against the defendant was returned on December 12, 1975, and the prosecutor moved for sentence on that very day. It is debatable, and perhaps doubtful, whether the language of Section 3A requires the prosecutor to move for sentence within seven days after an appellate court issues a rescript which requires a change in a defendant's sentence. In the circumstances of the present case the indictment is not required to be dismissed merely for want of such a motion. Although we do not condone the long time which was

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allowed to elapse from the date of our rescript to the date that the defendant was resentenced, there is nothing in the language of Section 3A, or in the record of this case, which can be construed as entitling the defendant to the dismissal of the indictment as a matter of right.

The defendant tries to draw an analogy between Section 3A and G. L. c. 277, Section 72A, as appearing in St. 1965, c. 343, which entitles a prisoner serving a sentence in a penal institution of this Commonwealth to apply for prompt trial or other disposition of a complaint or indictment pending against him, and which concludes by requiring that "such prisoner shall, within six months after such application is received by the court, be brought into court for trial or other disposition of any such [complaint or indictment], unless the court shall otherwise order." He then states that the decision of the Appeals Court in Commonwealth v. Gove, 1 Mass. App. Ct. 614 (1973), was a case where "a fifteen month delay in bringing an incarcerated defendant to trial on a rape indictment, in violation of G. L. c. 277, Section 72A, resulted in dismissal of the indictment." If that comment is intended to be a contention that the judge was automatically compelled to dismiss the indictment because it was not brought to trial within six months after the defendant filed his application under G. L. c. 277, Section 72A, reliance on the Gove decision of the Appeals Court for such a contention is misplaced. When the Gove case was before this court for further review, we said: "The Commonwealth has not challenged the dismissal of the rape conviction by the Appeals Court [under G. L. c. 277, Section 72A]." Commonwealth v. Gove, 366 Mass. 351, 352 n.1 (1974).

This same question under Section 72A was before us again in Commonwealth v. Alexander, 371 Mass. 726 (1977), in which we had granted further review after the decision by the Appeals Court in 4 Mass. App. Ct. 212 (1976). In our decision we said, at 728-729: "In this case and in Commonwealth v. Gove, 1 Mass. App. Ct. 614 (1973), aff'd on other grounds, 366 Mass. 351 (1974), the Appeals Court has held that where delay was neither attributable to the defendant

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nor for his benefit, a six months' delay after application for a prompt trial under [G. L. c. 277, Section 72A] requires automatic dismissal of the indictment. Since the Commonwealth did not seek further review of this aspect of the Appeals Court decision in Commonwealth v. Gove, supra, we had no occasion to decide whether a delay exceeding the statutory period required automatic dismissal in that case. See Commonwealth v. Fields, [371 Mass.] 274, 281 (1976); Commonwealth v. Boyd, 367 Mass. 169, 179 n.1 (1975). While the defendant in this case was denied his statutory rights and the indictment must be dismissed, we think the statute does not mandate a per se rule of dismissal after the statutory period has expired.... [W]e have previously stated that `General Laws c. 277, Section 72A, does not compel a judge to dismiss an indictment if the case is not tried or otherwise disposed of within six months after an application for a speedy trial is "received by the court"' (emphasis supplied). Commonwealth v. Fields, supra at 280-281, quoting from Commonwealth v. Loftis, 361 Mass. 545, 549 (1972). Commonwealth v. Daggett, 369 Mass. 790, 792-793 (1976)." See also Commonwealth v. Mattson, 377 Mass. 638, 639-641 (1979); Commonwealth v. Royce, 377 Mass. 356 (1979); Commonwealth v. Donati, 373 Mass. 769 (1977).

The decisions cited above with reference to G. L. c. 277, Section 72A, discuss various factors which may be considered in deciding whether to dismiss an indictment which is not tried or otherwise disposed of within the six months' period mentioned therein. These factors are substantially similar to those considered on a motion to dismiss for denial of a speedy trial, and they will be discussed below. At this point we conclude that there is nothing in either G. L. c. 279, Section 3A, or in c. 277, Section 72A, which entitles a defendant to an automatic dismissal of an indictment against him upon expiration of the time periods mentioned therein.

2. Constitutional right to prompt sentencing. The defendant's principal argument is that he has a constitutional right to a prompt sentencing under the Sixth Amendment to

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the United States Constitution, and under art. 11 of our Declaration of Rights, and that this right has been violated by the delay which occurred in his case. The defendant's introduction to his argument on this subject states that "there is very little case law on the subject of speedy sentencing in Massachusetts," and he cites no Massachusetts judicial precedents thereon. Instead he cites and relies on a number of decisions by Federal courts which treat the right to prompt sentencing as similar in most respects to the constitutional right to a speedy trial.

One of the earliest in the line of Federal decisions on this subject is Pollard v. United States, 352 U.S. 354 (1957), where the Court said, at 351-362: "We will assume arguendo that sentence is part of the trial for purposes of the Sixth Amendment. The time for sentence is of course not at the will of the judge. Rule 32 (a) of the Federal Rules of Criminal Procedure requires the imposition of sentence `without unreasonable delay.' [Note 3] Whether delay in completing a prosecution such as here occurred [two years' delay] amounts to an unconstitutional deprivation of rights depends upon the circumstances. [Citations omitted.] The delay must not be purposeful or oppressive. It was not here. It was accidental and was promptly remedied when discovered.... In these circumstances, we do not view the lapse of time before correction of the error as a violation of the Sixth Amendment or of Rule 32 (a). Error in the course of a prosecution resulting in conviction calls for the correction of the error, not the release of the accused."

From the Pollard decision where the Court "assume[d] arguendo that sentence is part of the trial for purposes of the Sixth Amendment," several Courts of Appeals then assumed that the case had actually held the law to be what the

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Supreme Court had only "assume[d] arguendo" that it was. United States v. Grabina, 309 F.2d 783, 786 (2d Cir. 1962), cert denied, 374 U.S. 836 (1963). In Juarez-Casares v. United States, 496 F.2d 190 (5th Cir. 1974), the court cited Pollard for the proposition that "the imposition of sentence is part of the trial for the purposes of the Sixth Amendment speedy trial guarantee." Id. at 192. In United States v. Campbell, 531 F.2d 1333 (5th Cir. 1976), cert. denied, 434 U.S. 851 (1977), the court, at 1335, cited Pollard as supporting its statement that "[t]he Supreme Court has stated that unreasonable delay in sentencing may constitute a violation of a defendant's Sixth Amendment right to a speedy trial." See also Moody v. Daggett, 429 U.S. 78, 93 (1976) (Stevens, J., dissenting). But see Dickey v. Florida, 398 U.S. 30, 43-46 (1970) (Brennan, J., concurring).

Notwithstanding the progression of cases cited above, and still other Federal cases not cited, which appear to assume that the Pollard decision settled the law to be that the Sixth Amendment guaranteed a speedy sentence, there is a more recent case which construes Pollard more strictly. In United States v. Campisi, 583 F.2d 692 (3d Cir. 1978), the court said at 694: "Initially, we note that the Supreme Court has not held squarely that the constitutional right to a speedy trial includes the right to a speedy sentence. However, in Pollard v. United States, 352 U.S. 354, 361 ... (1957), the Supreme Court did `assume arguendo that sentence is part of the trial for purposes of the Sixth Amendment.' We shall follow the same approach in scrutinizing petitioner's claim here." Perhaps in choosing to avoid the question whether speedy sentencing was included in the speedy trial provision of the Sixth Amendment, the Court of Appeals was influenced by the result which it reached. It could safely "assume arguendo" that the Sixth Amendment did include the matter of sentencing since it then held that the defendant's Sixth Amendment rights were in any event not violated.

We are in a similar situation here, for we conclude that any constitutional rights to speedy sentencing which the

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defendant may have under either the Sixth Amendment or art. 11 of the Declaration of Rights, have not been violated. Therefore, we too may "assume arguendo" that these two constitutional provisions entitle the defendant to a speedy sentencing, but we need not actually decide that point.

3. Application of constitutional rule to facts of this case. After having assumed that the Sixth Amendment right to a speedy trial includes a similar right to speedy sentencing, the Federal courts then applied to the sentencing cases the same four factor balancing test which the United States Supreme Court identified for use in cases involving claims of denial of speedy trial. These factors, as stated in Barker v. Wingo, 407 U.S. 514, 530 (1972), are the following: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." This is the precise test expressly applied in United States v. Campbell, supra at 1335, and in United States v. Campisi, supra at 694.

Applying the Barker balancing test to the facts of the present case, we conclude that the delay in sentencing the defendant involved no violation of his constitutional rights.

As to the first two factors in the Barker test, there is little dispute as to the facts, and they require a minimum of discussion. The length of the delay is documented as being about sixteen months, from July 29, 1977, to November 24, 1978. As to the reason for the delay there is little doubt that the district attorney either misunderstood what was required of him after the rescript from this court, or that he neglected to move for resentencing until the end of the sixteen-month period.

As to the defendant's assertion of his right to be sentenced, he must bear some part of the responsibility for the delay. He was represented by counsel who was notified of the rescript of this court. The defendant now contends that for sixteen months after the rescript he "suffered great stress, concern, and anxiety, because it was not yet determined whether his [new] sentence would run concurrently or from and after the sentence he was already serving" and that

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"[u]ntil that decision was made, he was in an emotional as well as a legal limbo." While he may rightfully contend that he was not legally obligated to do anything about expediting his resentencing, yet his failure to do anything about it for fourteen months after which he wrote his letter to the clerk of the court in September of 1978, is an item to be considered in striking a balance in this case. The fact that the defendant was at all times able to put an end to his claimed long ordeal of stress, concern and anxiety by simply writing a letter, as he ultimately did, can be considered in determining whether he was the unwilling victim of purposeful or oppressive delay. This small measure of self-help is not too much to expect from one who claims to have suffered for fourteen months from the deprivation of a constitutional right.

The fourth factor in the Barker balancing test is perhaps the most important in our conclusion that in this particular case there was no violation of the defendant's right to be sentenced reasonably promptly. The length of the delay is, of course, relevant, but it is not necessarily decisive. "If there has been an unreasonable delay, and if that delay results in prejudice to the defendant, then a violation has occurred." Juarez-Casares v. United States, 496 F.2d 190, 192 (5th Cir. 1974). "In determining whether a period of delay is unreasonable, it is necessary to look to the circumstances of each particular case." United States v. Campisi, 583 F.2d 692, 693 (3d Cir. 1978).

In arguing on the motion to dismiss the indictment, the defendant's counsel substantially repeated the allegations which had been made in the affidavit accompanying the motion, viz., that "I have suffered great emotional tension and stress due to my not having been sentenced. In particular, I have been worried as to whether the new sentence would be concurrent with or `on and after' the sentence I am currently serving. I have also been ineligible for certain prison programs due to not having been sentenced." There is nothing in the record as to what these "certain programs" were or how the defendant suffered in relation thereto by

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the delay in sentencing since he was already serving an unexpired life term. At the close of the argument on the motion the judge said: "I don't think there has been any harm done to the individual whatsoever. I am going to deny the motion." There was no error in denying the motion.

The question is whether the delay in resentencing the defendant caused him any legal prejudice. Even if the trial judge, or this court, were to accept as true the defendant's claim that he "suffered great emotional tension and stress due to ... not having been sentenced, [and that he] worried as to whether the new sentence would be concurrent with or `on and after' the sentence [he was] currently serving," that does not require a conclusion that he suffered legal prejudice from the delay in sentencing.

The defendant was not entitled, as a matter of right, to receive a concurrent sentence for the second murder which he committed while enjoying the hospitality of his victim. It is difficult to believe that the defendant could ever have had any serious question about what his sentence for the second murder would be. When he was first convicted he was given a second life sentence to be served from and after the one he was already serving. When he was resentenced for the second murder he was given a life sentence to be served from and after the one he was already serving, albeit that the new life sentence carried with it the possibility of ultimate liberty on parole.

There was nothing about the delay which deprived the defendant of a chance to receive concurrent sentences. The judge imposing the second life sentence was asked by the defendant's counsel to make it concurrent with the prior life sentence because "this is not the type of case which warrants stripping the defendant of all hope." It was not legal error, not was it in any way surprising, that the judge rejected that appeal out of hand, considering that it was made on behalf of a person who had stripped two women of their lives, the second murder occurring while he was at liberty on parole from his life sentence for the first murder. The defendant's disappointment at the consecutive sentences does not amount to legal prejudice.

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The defendant's extreme claim of entitlement to a dismissal of the second indictment against him by reason of the delay in the resentencing is totally without legal foundation and is equally without merit on any other consideration. In Bozza v. United States, 330 U.S. 160, 166-167 (1947), the Court said: "This Court has rejected the `doctrine that a prisoner, whose guilt is established, by a regular verdict, is to escape punishment altogether, because the court committed an error in passing the sentence.' In re Bonner, [15] U.S. 242, 260 (1894)]. The Constitution does not require that sentencing should be a game in which a wrong move by the judge [or, as in this case, by the prosecutor,] means immunity for the prisoner."

Judgment affirmed.