Cepulonis v. CommonwealthCepulonis v. Commonwealth
- Reporters:
- , ,
- Before:
- Nolan
In 1975 the petitioner was convicted of assault with intent to murder,
We conclude that a sentence of forty to fifty years for a violation of
The facts are set out in our earlier opinion. Commonwealth v. Cepulonis, 374 Mass. 487 (1978). We limit our discussion here to the validity of the sentence imposed for the possession of the machine gun and the questions of double jeopardy and effective assistance of counsel.
A.
Cruel and unusual punishment.
This court has recognized that it is possible that imprisonment for a long term of years might be so disproportionate to the offense as to constitute cruel and unusual punishment.
2
McDonald
v.
The burden is on a defendant to prove such disproportion because the Legislature is given broad discretion in determining the punishment for a given offense. Commonwealth v. O’Neal, 369 Mass. 242, 248 (1975) (Tauro, C.J., concurring). Commonwealth v. Jackson, 369 Mass. 904, 909 (1976). This court has adopted a tripartite analysis to determine whether a defendant has met his burden. Id. at 910.
The first prong of the disproportionality test requires inquiry into the “nature of the offense and the offender in light of the degree of harm to society.”
Commonwealth
v.
Jackson, supra. Opinion of the Justices,
378 Mass. 822, 831 (1979). A statute designed to protect the public from those who would illegally possess a machine gun might well be one expressing the legislative judgment that severe penalties are needed to inhibit such “gangster-type weapons.” See Conference Rep. No. 1956, 90 Cong., 2d Sess., reprinted in [1968] U.S. Code Cong. & Ad. News 4426, 4434. The Legislature may well have inferred from common knowledge that the unlicensed possession of machine guns is almost always associated with the commission of violent crimes with the potential for mass killing. See
Rinzler
v.
Carson,
262 So. 2d 661, 666 (Fla. 1972) (the machine gun is in “the arsenal of the public enemy and the gangster [with which he] wars on the State”). In light of the potential for danger which the Legislature could have recognized and the
The second prong of the disproportionality analysis involves a comparison between the sentence imposed here and punishments prescribed for the commission of more serious crimes in the Commonwealth. See Opinion of the Justices, 378 Mass. 822, 831 (1979). A sentence of forty to fifty years is, of course, more severe than the penalty imposed for some crimes in the Commonwealth, and the petitioner in this case has been sentenced for a longer period than one might be sentenced for some crimes involving harm to a person. The Legislature, however, has great latitude in determining the relative seriousness of crimes and the concomitant need for deterrence. Commonwealth v. Jackson, supra at 915. The Legislature could have reasonably determined that a severe penalty for the unlawful posssession of a machine gun was necessary to avoid the potential consequences of its use. Thus a forty to fifty year sentence for the unlawful possession of a machine gun is not constitutionally excessive.
The final prong this court examines in the disproportionality analysis is a comparison of the challenged penalty with the penalties prescribed for the same offense in other jurisdictions. Initially, we recognize that a disparity between this Commonwealth and other States may indicate no “more than different exercises of legislative judgment,” rather than “a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice.”
Commonwealth
v.
Jackson, supra
at 914, quoting from
Weems
v.
United States,
217 U.S. 349, 381 (1910). We are aware of no other State that imposes a forty to fifty year sentence for possession of a machine gun, but we note that there are several States in which the penalty for possession of a machine gun approaches this figure. See, e.g., Missouri (
The petitioner argues, further, that a sentence of forty to fifty years is excessive and unconstitutional because it “makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering.” Coker v. Georgia, 433 U.S. 584, 592 (1977). The standard of review in considering less than a capital sentence is “whether the statute bears a reasonable relation to a permissible legislative objective.” Commonwealth v. Jackson, 369 Mass. 904, 918 (1976). This court has identified the interests served by punishment. These are (1) deterrence, (2) isolation and incapacitation, (3) retribution and moral reinforcement, and (4) reformation. Commonwealth v. O’Neal, 369 Mass. 242, 251 & n.11 (1975) (Tauro, C.J., concurring). We cannot say that the Legislature or the judge below was in error in determining that the petitioner’s sentence promoted these four interests. We note that the petitioner’s possession of the machine gun in this case was marked by its use first in a bank hold up and later in a shoot out with the police during which an innocent bystander was wounded. In determining the severity of the punishment, the sentencing judge violated none of the petitioner’s rights by taking into consideration the circumstances of his offense.
While there may be serious debate as to the “effectiveness of harsh penalties in reducing crime,” Commonwealth v. Jackson, supra at 913, the Legislature has not unconstitutionally exceeded its prerogative by authorizing the sentence the petitioner received in this case. Such a term in State prison, furthermore, extends the petitioner’s incapacitation and exacts a large measure of retribution. Finally, a legislative judgment that a severe sentence for unlawful possession of a machine gun is needed to reform the perpetrator of such a crime is not irrational. The petitioner has not met his burden of showing that his sentence is unreasonable.
The Commonwealth contends that a fair application of the test derived from Morey v. Commonwealth, 108 Mass. 433 (1871), establishes that unlawful possession of a machine gun is not a lesser included offense within assault and battery by means of a dangerous weapon. We agree with the Commonwealth and conclude that the petitioner was not convicted of a lesser included offense and that his conviction was not duplicitous.
The test for whether two statutory offenses may give rise to two convictions arising from a single incident is whether each crime “requires proof of an additional fact which the other does not . . . .”
Morey
v.
Commonwealth, supra
at 434.
Commonwealth
v.
Crocker, ante
353, 357 (1981).
Kuklis
v.
Commonwealth,
361 Mass. 302, 306-307 (1972). See
Blockburger
v.
United States,
284 U.S. 299, 304 (1932) (adopting this test for Federal offenses). If, then, the elements of the offenses charged require proof of a different fact, neither crime is the lesser included offense of
We turn, then, to an examination of the offenses for which the defendant was convicted, and conclude that each required evidence that the other did not. Unlawful possession of a machine gun,
The petitioner claims, however, that we must look beyond
Morey
to discuss whether there is a legislative intent not to punish two factually related crimes, even if the elements of the offenses are distinct under
Morey.
See
Commonwealth
v.
Jones, supra
at 393-394. However, as we announced in
Commonwealth
v.
Crocker, supra
at 360,
C. Effective assistance of counsel. The petitioner claims he was denied effective assistance of counsel at sentencing and on appeal. He bases his claim on the failure of his former counsel to raise or brief the cruel and unusual punishment and lesser included offense issues. Having found against the petitioner on the foregoing issues, we find no merit in his claim that his counsel exhibited “serious incompetency, inefficiency, or inattention . . . behavior . . . falling measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We have found, in cases where ineffective assistance of counsel is charged, that there ought to be some showing that better work might have accomplished something material for the defense. Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). The petitioner has made no such showing here.
Judgments affirmed.
Notes
This court adjudges only whether the right of this petitioner to be free of cruel and unusual punishment has been violated in this case. See United States v. Raines, 362 U.S. 17, 21 (1960).
The petitioner bases his cruel and unusual punishment challenge on both the Eighth Amendment to the United States Constitution and on art. 26 of the Massachusetts Declaration of Rights. This court has never decided whether the language of the Eighth Amendment (“nor cruel and unusual punishments inflicted”) and art. 26 (“[n]o magistrate or court of law, shall . . . inflict cruel or unusual punishments”) have the same meaning. District Attorney for Suffolk Dist. v. Watson, 381 Mass. 648, 676 (1980) (Liacos, J., concurring). The court need not decide the question here. The United States Supreme Court has recently expressed great deference to State Legislatures in their formulation of penalties for felonies. In Rummel v. Estelle, 445 U.S. 263, 274 (1980), the Court stated: “for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative” (footnote omitted). Arguably, then, the proportionality test need not be applied with respect to the Eighth Amendment in the instant case. The sentence is so analyzed, however, because the proportionality test is still applicable under art. 26.
It is unclear whether the petitioner is also claiming that the offense of possession is a lesser included offense of assault with intent to murder. Irrespective of whether the petitioner so argued, he must fail. Assault with intent to murder is even further attenuated from possession of a machine gun than is assault and battery by means of a dangerous weapon.
While this claim may be characterized as arising either under the double jeopardy clause of the Fifth Amendment to the United States Constitution or under the common law, we have ordinarily not rested decisions involving multiple convictions arising from the same event on constitutional grounds. In such cases, where at a single proceeding, a defendant has been convicted and sentenced for two offenses arising out of the same act, we have generally preferred to analyze the case under the common law Morey rule and have struck offending convictions as “duplicitous,” rather than as violative of double jeopardy. Commonwealth v. Crocker, ante 353, 358 n.8 (1981), and cases cited.
The petitioner argues that, since the Commonwealth proved that the dangerous weapon was in fact a machine gun, possession of a machine gun was an element of the proof of assault and battery by means of a dangerous weapon. The petitioner’s argument is misplaced. The Commonwealth need not have introduced the description of a machine gun contained in