Commonwealth v. Rivas, 466 Mass. 184

Defendant convicted on four firearm-related charges: unlawful possession of a firearm, possession of ammunition, unlawful possession of a loaded firearm, and unlawful possession of a large capacity weapon.
Two duplicative convictions (1 vs 4; 2 vs 3) trigger double jeopardy and require vacating one conviction per duplicative pair.
The Commonwealth and defendant disagree on which duplicative convictions to vacate; sentencing enhancements under § 10G affect which offenses carry higher penalties.
Jury also convicted the defendant on the underlying offenses; a separate proceeding determined repeat-offender status and application of § 10G enhancements.
Trial judge imposed concurrent, enhanced sentences; the remand is to decide, in the sentencing judge’s discretion, which duplicative conviction to vacate to preserve a proper sentencing scheme.
The court addressed suppression issues: probable cause to stop/search the vehicle and admissibility of narcotics-surveillance testimony, affirming denial of suppression and mistrial motions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether duplicative convictions must be vacated and which to vacate	Commonwealth supports vacating lesser-penalty offenses	Duffly argues vacating lesser included offenses carrying higher penalties	Remand to sentencing judge to exercise discretion which duplicative convictions to vacate
Lawfulness of stop and search	Probable cause based on officer’s knowledge of prior narcotics convictions	Lack of probable cause due to equivocal basis and improper inference	Motion to suppress affirmed (stop/search upheld)
Admission of narcotics-surveillance testimony as prior bad acts	Surveillance testimony admissible under witness scope	Testimony improperly referenced narcotics assignment and prejudiced defense	Admission not prejudicial; no reversal due to lack of impact on verdict
Remand procedure for duplicative-conviction vacancy	Remand unnecessary; appellate VACATE rules suffice	Remand needed for discretion in vacating counts	Remand to Superior Court for discretionary determination of which counts to vacate
Effect of sentencing enhancements on duplicativeness analysis	Enhancements do not change elements; duplicativeness analyzed by Morey test	Duplication assessment should consider enhanced penalties	Elements-based duplicativeness remains; remand preserves sentencing structure

Commonwealth v. Letkowski, 83 Mass. App. Ct. 847 (2013) (remand for discretion to vacate duplicative counts)
Commonwealth v. Johnson, 461 Mass. 44 (2011) (duplication and lesser-included offenses; elements test)
Commonwealth v. Crocker, 384 Mass. 353 (1981) (duality of duplicative convictions; sentencing considerations)
Commonwealth v. Mello, 420 Mass. 375 (1995) (remedial vacatur of duplicative convictions)
Commonwealth v. Valliere, 437 Mass. 366 (2002) (Morey v. Commonwealth; elements-based duplicativeness)
Commonwealth v. Jones, 382 Mass. 387 (1981) (elements-based test for duplicative offenses)
Brown v. Ohio, 432 U.S. 161 (1977) (double jeopardy; limits on punishment)
Missouri v. Hunter, 459 U.S. 359 (1983) (double jeopardy; legislative intent on multiple punishments)
Commonwealth v. Suero, 465 Mass. 215 (2013) (double jeopardy principles in Massachusetts)
Commonwealth v. Goodwin, 414 Mass. 88 (1993) (judicial discretion in sentencing factors)
Commonwealth v. Ferguson, 30 Mass. App. Ct. 580 (1991) (judge's discretion in crafting sentence)
Commonwealth v. Johnson, 75 Mass. App. Ct. 903 (2009) (discretion to vacate duplicative counts; Brown concurrence)
United States v. Peel, 595 F.3d 763 (7th Cir. 2010) (vacating duplicative counts; sentencing discretion)
United States v. Maier, 646 F.3d 1148 (9th Cir. 2011) (count to vacate is a sentencing decision)
United States v. Chambers, 944 F.2d 1253 (6th Cir. 1991) (sentencing discretion in duplicative offenses)