COMMONWEALTH vs. RICHARD E. VALLIERE.

SPINA, J. A single justice of this court, acting pursuant to the gatekeeper provision in G. L. c. 278, § 33E, allowed the Commonwealth's application for leave to appeal from an order of a Superior Court judge allowing the defendant's third motion to correct illegal sentence filed in 1999. The judge who ruled on the defendant's motion opined that, because the defendant's armed robbery convictions merged with his convictions of murder in the first degree, as lesser included offenses, the armed robbery convictions and sentences should be vacated. We

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conclude that the defendant's attack on his armed robbery convictions and sentences was waived because he failed to raise it in a prior postdirect appeal motion. [Note 1] Therefore, the order allowing the defendant's motion to correct illegal sentence is reversed.

The facts of this case were set forth in detail in Commonwealth v. Valliere, 366 Mass. 479, 481-482 (1974). In brief, on January 11, 1971, a man entered a branch of the Springfield Institution for Savings in Chicopee, shot and killed two bank employees while they were lying face down on the floor, and took $4,655.16. Circumstantial evidence pointed to the defendant as the perpetrator. Following a jury trial, the defendant was found guilty of two counts of murder in the first degree and two counts of armed robbery while masked and disguised. He was sentenced to death on the murder convictions and was sentenced to from forty-five to sixty years on each of the armed robbery convictions. [Note 2] The defendant filed a motion for a new trial that was denied. While his appeal was pending in this court, the United States Supreme Court decided Furman v. Georgia, 408 U.S. 238 (1972), which invalidated the type of procedure under which the defendant had been sentenced to death. This court affirmed the defendant's convictions following review pursuant to G. L. c. 278, § 33E, but, in light of Furman, vacated the death sentences and remanded for resentencing to imprisonment for life. See Commonwealth v. Valliere, supra at 497.

The defendant filed motions for a new trial in 1977, 1978, and 1980. The basis for these motions was newly discovered exculpatory evidence in the form of a police report that was allegedly not available to the defendant at trial. None of the motions

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involved the propriety of the defendant's sentences, and all were denied.

In 1981, the defendant filed a motion to correct sentence pursuant to Mass. R. Crim. P. 30 (a), 378 Mass. 900 (1979). [Note 3] The Commonwealth assented to the defendant's request that all his sentences run concurrently, and the motion was allowed. In 1994, the defendant filed a second motion to correct sentence pursuant to rule 30 (a). He claimed that this court did not have the authority to resentence him to life imprisonment because under G. L. c. 265, § 2, as it existed at the time of his convictions, it was the jury, not the court, that had the power to recommend a life sentence in place of execution. The motion judge declined to act on the motion because it had been filed twenty years after this court's decision in Commonwealth v. Valliere, supra, and because the defendant was essentially asking the Superior Court to overrule that decision. The defendant did not appeal.

In 1997, the defendant filed a petition for habeas corpus relief in the county court, relying on the same arguments that he had advanced in his 1994 motion to correct sentence and raising an additional claim that his armed robbery convictions should be vacated because they merged with his murder convictions. A single justice denied the petition, and the full court affirmed her

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order. See Valliere v. Superintendent of Mass. Correctional Insts., 429 Mass. 1024 (1999). [Note 4]

In 1999, the defendant filed a third motion to correct sentence pursuant to rule 30 (a), seeking to have his armed robbery convictions vacated on the ground that they merged with his convictions of murder in the first degree as lesser included offenses. The defendant's motion was allowed by a Superior Court judge. [Note 5] The Commonwealth's motions for reconsideration, to reserve judgment, and to report questions of law pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1979), were denied. [Note 6] However, the judge allowed the Commonwealth's motion for a stay pending a petition for leave to appeal pursuant to G. L.

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c. 278, § 33E. A single justice of this court allowed the Commonwealth's petition for leave to appeal.

The Commonwealth's present contention is that the judge erred in concluding that the defendant had not waived his claim that he was entitled to dismissal of his armed robbery convictions, as lesser included offenses that merged with his convictions of murder in the first degree, where the defendant had failed to request dismissal in earlier postdirect appeal motions. The Commonwealth argues that the law pertaining to the defendant's claim was sufficiently developed at the time he first sought to have his sentences corrected in 1981. Furthermore, the defendant's 1994 motion to correct sentence did not address the issue of merger and did not request that his armed robbery convictions be dismissed. This, the Commonwealth asserts, constituted a waiver of the defendant's claim. We agree.

The appeal of a postconviction motion arising from a conviction of murder in the first degree is governed by G. L. c. 278, § 33E. [Note 7] See Mains v. Commonwealth, 433 Mass. 30, 32 (2000). "The statute requires that the defendant present all his claims of error at the earliest possible time, and failure to do so precludes relief on all grounds generally known and available at the time of trial or appeal." Commonwealth v. Pisa, 384 Mass. 362, 365-366 (1981). In such circumstances, the defendant's claims will be deemed waived. See Lykus v. Commonwealth, 432 Mass. 160, 163 (2000) (defendant's argument in third motion to correct illegal sentence that concurrent sentence for kidnapping was duplicative of sentence for murder in first degree waived because it could have been raised in earlier postconviction proceedings); Commonwealth v. Ambers, 397 Mass. 705, 707

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(1986). "This requirement is critical to achieve finality in the litigation of criminal cases and to assure that limited judicial resources are not consumed by claims that should have been raised earlier." Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000). See Commonwealth v. Amirault, 424 Mass. 618, 640 (1997); Commonwealth v. Pisa, supra at 366-367.

The traditional rule in Massachusetts, as embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871), and its progeny, is that a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not. See Commonwealth v. Buckley, 410 Mass. 209, 222 (1991); Commonwealth v. Crocker, 384 Mass. 353, 357 (1981); Kuklis v. Commonwealth, 361 Mass. 302, 306-307 (1972). As long as each offense includes an element that the other does not, "neither crime is a lesser-included offense of the other, and convictions on both are deemed to have been authorized by the Legislature and hence not [duplicative]." Commonwealth v. Jones, 382 Mass. 387, 393 (1981). At the same time, a court may examine whether the actions of a defendant were "so closely related in fact as to constitute in substance but a single crime." Commonwealth v. St. Pierre, 377 Mass. 650, 662-663 (1979). In such cases, the defendant cannot properly be sentenced both for the more serious crime and the lesser included offense. See Commonwealth v. Thomas, 401 Mass. 109, 119-121 (1987) (indictment for indecent assault and battery dismissed where defendant convicted of rape). Cf. Commonwealth v. Jones, supra at 394 (although vehicular homicide not lesser included crime of manslaughter, two offenses were sufficiently closely related so as to preclude punishment on both).

In the early 1980's, we stated that "whenever the possibility exists that a jury might have reached a verdict of murder in the first degree on the basis of a felony-murder theory, a consecutive sentence may not be imposed for the underlying felony." Commonwealth v. Wilson, 381 Mass. 90, 124 (1980). The appropriate remedy for duplicative convictions, so as to prevent multiple punishments, is to vacate both the conviction and sentence on the lesser included offense, and to affirm on the

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more serious offense. See Commonwealth v. Crocker, supra at 358 n.6. In Commonwealth v. Jones, supra at 395, this remedy was extended not only to duplicative convictions resulting in consecutive sentences, but also to duplicative convictions resulting in concurrent sentences for what amounted to the same offense. See Commonwealth v. Atencio, 12 Mass. App. Ct. 747, 752-753 (1981) (convictions of lesser included offenses of driving to endanger and driving while under influence of liquor set aside as duplicative of conviction of vehicular homicide).

We recognize that defense counsel need not be clairvoyant in order to avoid imposition of the doctrine of waiver. See Commonwealth v. Amirault, supra at 639. However, by the early 1980's, it was reasonably apparent in Massachusetts appellate decisions that convictions and sentences on lesser included offenses were to be vacated in favor of those on the more serious crimes. See Commonwealth v. Jones, supra; Commonwealth v. Atencio, supra. The defendant argues that his claim concerning the legality of his sentences for armed robbery did not become apparent until this court's decision in Commonwealth v. Berry, 420 Mass. 95, 113-114 (1995). In that case, we explicitly stated that, whenever a jury might have reached a verdict of murder on the basis of a felony-murder theory, a concurrent sentence for the underlying felony is duplicative and cannot be imposed. Id. The defendant's reliance on Commonwealth v. Berry, supra, as the first announcement of the underlying principle is without merit because our holding in that case was expressly based on our prior holdings in Commonwealth v. Wilson, supra at 124; Commonwealth v. Crocker, supra at 358 n.6; and Commonwealth v. Jones, supra at 395-396. All that Commonwealth v. Berry, supra, did was to take the previously announced requirement that duplicative lesser included offense convictions must be vacated (and not just disposed of by concurrent sentences) and apply it to the specific context of felony-murder convictions.

We conclude that, by 1994, when the defendant filed his second motion to correct sentence, the legal theory on which he now relies was sufficiently developed that his failure to bring the present claim in that motion constitutes a waiver. See Commonwealth v. Watkins, 433 Mass. 539, 544-547 (2001)

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(defendant's attack on reasonable doubt instructions waived where he failed to raise claim in first postdirect appeal motion for new trial); Lykus v. Commonwealth, supra at 163; Rodwell v. Commonwealth, supra at 1018. See also Commonwealth v. Burnett, 428 Mass. 469, 473-474 (1998) (where theory on which defendant relied was foreshadowed by earlier case law, G. L. c. 278, § 33E, precluded further review because issue should have been raised at trial or on direct appeal). "[W]e have never held that only a holding on an issue squarely on point will suffice to invoke the doctrine of waiver." Commonwealth v. Amirault, supra at 643.

For the foregoing reasons, the order allowing the defendant's third postdirect appeal motion to correct sentence is reversed.

So ordered.