419 Mass. 1009

February 3, 1995

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The case was submitted on briefs.

Wendy Sibbison for the defendant.

William M. Bennett, District Attorney, Judy Zeprun Kalman & Judith Ellen Pietras, Assistant District Attorneys, for the Commonwealth.

On reconsideration of the application, we granted further appellate review in this case limited to the question whether the Appeals Court erred in not ordering resentencing on a conviction of armed robbery while masked when it ordered sentencing on the defendant's conviction of assault with intent to murder. Commonwealth v. Gagnon, 37 Mass. App. Ct. 626 (1994). The Appeals Court had reduced the verdict of armed assault with intent to murder to assault with intent to murder and ordered sentencing on the revised verdict.

The record shows that the sentencing judge considered the defendant's shooting behavior when he sentenced on the armed robbery conviction. Consequently, it is appropriate to vacate the armed robbery sentence as well and to remand the armed robbery conviction (indictment no. 77-2666) for resentencing. Cf. Commonwealth v. Clermy, 37 Mass. App. Ct. 774 , 779 (1995).

Accordingly, we revise the Appeals Court order to reflect this change. The sentences imposed on indictment nos. 77-2669 (armed assault with intent to murder) and 77-2670 (attempted murder) are vacated, and the judgment of conviction on indictment no. 77-2670 is reversed. The case is remanded to the Superior Court, where indictment no. 77-2670 is to be dismissed as duplicative, and the docket entries for indictment no. 77-2669 are to be revised to reflect the verdict of guilty of simple assault with intent to murder, G. L. c. 265, Section 15 (1992 ed.). The defendant is to be resentenced on the latter conviction. The sentence imposed on indictment no. 77-2666 (armed robbery while masked) is vacated, and the defendant is to be resentenced on that conviction. The sentences on indictment nos. 77-2669 and 77-2666 shall run concurrently, with credit for time served. As to the other charges, the order denying the motion for postconviction relief is affirmed.

So ordered.


419 Mass. 1009

February 6, 1995

The case was submitted on briefs.

Andrew P. Genninger, pro se.

Scott Harshbarger, Attorney General, & Nina L. Ross, Assistant Attorney General, for the Commissioner of Correction.

In a decision pursuant to its Rule 1:28, the Appeals Court affirmed the denial of the plaintiff's request for a hearing and investigation to determine who "willfully falsified and altered a copy of the grand jury minutes" in

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his file [Note 1] and dismissed the plaintiff's complaint against the district attorney for the Norfolk district. See 29 Mass. App. Ct. 1101 (1990). The plaintiff sought further appellate review which was denied. See 408 Mass. 1104 (1990). The plaintiff then sought to raise the same issues and obtain the same relief by filing a civil action in the nature of certiorari, see G. L. c. 249, Section 4 (1992 ed.), in the county court [Note 2] single justice session. Relief was denied and the plaintiff appeals. There was no error. After review by the Appeals Court and the denial of further appellate review, the plaintiff had no right to further consideration of those issues.

Judgment affirmed.


[Note 1] The grand jury minutes contained an erroneous reference to a bullet wound to the "head" rather than to the "heart." A corrected page has been inserted into the grand jury minutes in the plaintiff's file.

[Note 2] Of all the defendants named in this action, only the Commissioner of Correction is a party to this appeal.