Commonwealth v. Jackson, 80 Mass. App. Ct. 528

March 29, 2009, loss prevention officer Tiffany Pimentel observed the defendant placing items into a bag and leaving Shaw’s Supermarket in Cambridge.
Pimentel followed the defendant; he lunged, punched high at her body, and kicked her legs when she crouched, while she was pregnant.
A jury-waived trial resulted in convictions for assault and battery by means of a dangerous weapon (as a lesser included offense) and assault and battery.
On October 6, 2009, the judge sentenced the defendant to two years in the house of correction for count 1 with one year to serve and four years’ probation, and a concurrent two-year term for count 4 with one year to serve and four years’ probation, to start after an 18-month sentence then-being served.
The probation department later reported the defendant refused to sign the conditions of probation; ten days later the judge vacated the original sentence and imposed new, longer terms, to be served consecutively with the earlier period but to run concurrently with each other.
The defendant challenged the revision as impermissible and argued the revocation/alteration of sentence violated Rule 29(a) as well as due process and double jeopardy.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the assault and battery conviction is duplicative of the dangerous-weapon conviction	Vick: two convictions not duplicative; acts are separate.	Duplication since lesser included offense overlaps with greater offense.	Not duplicative; two separate acts supported distinct convictions.
Whether the judge properly revised and increased the sentence under Rule 29(a)	Rule 29(a) authorizes revision within 60 days for grounds including new mitigating or favorable information.	Revision based on postsentencing conduct; improper to consider.	Revision authorized; information existed at sentencing and was not post-sentencing conduct; not an improper probation-revocation mechanism.
Whether the sentencing change violated due process	Judicial transparency and attorney presence preserved due process.	Longer sentence after probation refusal without adequate safeguards.	No due process violation; proceedings included counsel and warnings; proper under the circumstances.
Whether the change violated double jeopardy	Sentences aligned with statutory maximums and did not punish twice for same offense.	Revising to a longer sentence could punish twice.	No double jeopardy violation; sentences authorized and not duplicative of the offenses.

Commonwealth v. Latimore, 378 Mass. 671 (1979) (establishes standard for reviewing such claims)
Commonwealth v. Connolly, 49 Mass. App. Ct. 424 (2000) (separate-and-distinct-acts analysis for included offenses)
Commonwealth v. King, 445 Mass. 217 (2005) (separate and distinct acts vs. single crime)
Commonwealth v. Vick, 454 Mass. 418 (2009) (standard for reviewing duplicative-conviction claims when no trial-level preservation)
Commonwealth v. Ortiz, 431 Mass. 134 (2000) (issues of sentencing and clarity in rule applications)
Commonwealth v. Derry, 26 Mass. App. Ct. 10 (1988) (Rule 29(a) authority to increase sentence)
Commonwealth v. Goodwin, 458 Mass. 11 (2010) (limits and scope of Rule 29 revisions)
Commonwealth v. Bruzzese, 437 Mass. 606 (2002) (timing of Rule 29(a) revision after sentencing)
Commonwealth v. Christian, 46 Mass. App. Ct. 477 (1999) (probation conditions and their implications)
Commonwealth v. Ruiz, 453 Mass. 474 (2009) (probation after incarceration and commencement timing)
Commonwealth v. Sitko, 372 Mass. 305 (1977) (consideration of post-sentencing information)
Commonwealth v. Gebo, 75 Mass. App. Ct. 1108 (2009) (unpublished; sentencing by revision context discussed)