RAMADAN S. SHABAZZ [Note 1] vs. COMMONWEALTH.

WILKINS, J. The plaintiff (Shabazz) is serving two concurrent life sentences for murder in the first degree of one Thorn and of one Jeffreys, and a sentence of life imprisonment for armed robbery of Thorn, to be served from and after the other life sentences. These crimes all arose out of a single incident. Commonwealth v. Hall, 369 Mass. 715 (1976). Shabazz argues that the convictions of murder could have been based on the theory of felony-murder and that, therefore, the "from and after" sentence for armed robbery is constitutionally barred under the Fifth Amendment to the Constitution of the United States. We agree with this conclusion, although we note the result is the same under the law of the Commonwealth. See Commonwealth v. Wilson, 381 Mass. 90 (1980). The question then arises whether this court can and should order the restructuring of Shabazz's sentences so as to make the life sentences for murder in the first degree consecutive and the armed robbery sentence concurrent with the first life sentence for murder. We conclude that we should not do so.

The case is before us on reservation and report by a single justice of this court, on an amended petition for a writ of error (see now Mass. R. Crim. P. 30, 378 Mass. 900 [1979]), cross motions for summary judgment, and an "Agreed Statement of Facts." We summarize the facts agreed to by the parties. Shabazz was convicted on March 21, 1972, of all three crimes. The evidence would have supported convictions of murder in the first degree under either a theory of felony-murder or deliberately premeditated murder, and the judge so charged the jury. There is no indication on the trial record as to which theory the jury relied on in returning guilty verdicts on the murder indictments. The judge sentenced Shabazz to death on each murder indictment and to life imprisonment on the armed robbery indictment, the latter sentence to run from and after the death sentences. In Commonwealth v. Hall, 369 Mass. 715, 737 (1976), this court affirmed Shabazz's convictions but remanded the murder indictments to the Superior Court for imposition of sentences of life imprisonment, leaving the question whether

Page 293

the sentences should be concurrent or consecutive to the discretion of the trial judge. The judge imposed consecutive life sentences on the murder indictments, the armed robbery sentence to remain from and after the expiration of the sentences on the murder indictments.

Shabazz then appealed his consecutive sentence on one murder indictment to the Appellate Division of the Superior Court which, on November 29, 1976, amended the sentence to make it run concurrently with the other life sentence for murder. Subsequently, Shabazz unsuccessfully appealed the length of his sentence for armed robbery to the Appellate Division of the Superior Court. In May, 1979, after entry of this petition for a writ of error in the Supreme Judicial Court for the county of Suffolk and the appointment of counsel, Shabazz obtained a rehearing before the Appellate Division on the constitutionality of having the armed robbery sentence served consecutively with his life sentences for murder. The Appellate Division without opinion denied Shabazz's appeal on November 27, 1979.

Because Shabazz is serving two concurrent life sentences without the possibility of parole (unless those sentences are commuted, see G. L. c. 265, Section 2), one might wonder as to the significance to Shabazz of a consecutive sentence for armed robbery. It is agreed that, because of the consecutive life sentence for armed robbery, Shabazz is denied the benefit of rehabilitative programs for which he would otherwise be eligible. [Note 2]

1. We consider first the question whether it is permissible for Shabazz to be sentenced to life imprisonment for the murders of Thorn and Jeffreys and to be sentenced to a consecutive term of life imprisonment for the armed robbery of Thorn. In Commonwealth v. Wilson, 381 Mass. 90, 124 (1980), we held that such a consecutive sentence could not stand where there was a possibility that the conviction of

Page 294

murder in the first degree rested on the underlying felony for which the consecutive sentence was imposed. We relied on the long-standing rule in the Commonwealth that "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." Id., quoting from Morey v. Commonwealth, 108 Mass. 433, 434 (1871). In short, the "same evidence" rule bars the imposition on Shabazz of a consecutive sentence for the armed robbery. See Commonwealth v. Stewart, 375 Mass. 380, 392-393 (1978).

Our determinations have not been based on the double jeopardy clause of the Fifth Amendment to the Constitution of the United States (applicable to the States through the Fourteenth Amendment) or on whatever comparable principle may be found in the Constitution of the Commonwealth (there being no explicit double jeopardy clause). It appears, however, that our conclusions have been consistent with the views expressed by the Supreme Court of the United States concerning double jeopardy. See Brown v. Ohio, 432 U.S. 161, 165-166 (1977); Blockburger v. United States, 284 U.S. 299, 304 (1932).

The Commonwealth points to dicta in Albernaz v. United States, 450 U.S. 333, 344 (1981), which suggest that double jeopardy principles are not violated where there is a clear indication that the legislative branch intended to impose multiple punishments for two offenses, even where each statutory offense does not require proof ofa fact not involved in the other offense. See Whalen v. United States, 445 U.S. 684, 689-690 (1980); Brown v. Ohio, supra at 165. Admittedly, the crimes of murder and armed robbery are distinct crimes, but we find no "clear indication" (Albernaz v. United States, supra at 340) of a legislative intent, contrary to our general common law rule, to impose multiple punishments for these two crimes. Only when there is such a clear expression of intent would the common law rule, and perhaps any constitutional bar to multiple punishments, not apply.

Page 295

We thus agree that Shabazz's consecutive sentence for armed robbery cannot stand. It is inconsistent with the common law rule in this Commonwealth and with the double jeopardy clause of the Fifth Amendment to the Constitution of the United States.

2. We come then to the Commonwealth's argument that the case should be remanded to the Appellate Division for the imposition of a life sentence on the armed robbery conviction to run concurrently with the life sentence for the murder of Thorn and for the imposition of a consecutive life sentence on the other murder conviction. We are not dealing here with sentences that are, by statute, subject to judicial reconsideration during a certain period of time and thus not final for double jeopardy purposes. See Aldoupolis v. Commonwealth, 386 Mass. 260, 274-275 (1982); United States v. DiFrancesco, 449 U.S. 117, 138-139 (1980). The sentences on all three convictions were final once the Appellate Division of the Superior Court acted with respect to them. G. L. c. 278, Section 28B. [Note 3] There are suggestions that a reopening of such final and unappealed sentences to increase them would run afoul of the double jeopardy clause. See McHoul v. Commonwealth, 365 Mass. 465, 469 (1974); Chandler v. United States, 468 F.2d 834, 837 (5th Cir. 1972); Walsh v. Picard, 446 F.2d 1209, 1211 (1st Cir. 1971). There may be a procedural question whether this court has the authority to reopen the unchallenged sentences for redetermination, quite apart from any double jeopardy question. There is authority, however, supporting the view that a successful challenge to one sentence imposed at the same time as other sentences (as is the case here), [Note 4] opens up all the

Page 296

interdependent, lawful sentences for reconsideration without violating the double jeopardy clause, at least if the aggregate of the original sentences is not to be increased. See United States v. Busic, 639 F.2d 940, 947-948, 951 n.12 (3d Cir.), cert. denied, 452 U.S. 918 (1981); United States v. Hodges, 628 F.2d 350, 353 (5th Cir. 1980); McClain v. United States, 527 F. Supp. 209, 219-223 (S.D.N.Y. 1981).

We need not decide whether, on a successful challenge to the legality of one sentence, this court may properly order reconsideration of all lawful, interdependent sentences to which a defendant raised no challenge. Here, the Commonwealth proposes a restructuring of Shabazz's sentence that would result in the imposition of a more severe aggregate punishment than was in place when Shabazz brought this challenge to the unlawful sentence for armed robbery. If two consecutive life sentences without the possibility of parole were now imposed, as the Commonwealth urges, Shabazz would be worse off than he was when he had two concurrent life sentences without the possibility of parole followed by a life sentence (for armed robbery) subject to parole. We are aware of no authority, in the face of a double jeopardy challenge, supporting an increase in aggregate punishment by adjustment of unchallenged, final sentences upon the invalidation of another interdependent sentence. Such a possibility would chill the exercise of a defendant's right to challenge an unlawful sentence. To increase Shabazz's aggregate sentence would be essentially unfair. It would violate the double jeopardy clause and would be contrary to the common law of this Commonwealth. [Note 5]

Page 297

An order shall be entered in the Supreme Judicial Court for the county of Suffolk vacating the sentence on the armed robbery indictment (indictment 58887). Shabazz shall be resentenced in the Superior Court to a life sentence on the armed robbery indictment, the sentence to be served concurrently with the two life sentences on the two murder indictments.

So ordered.