The defendant was tried on indictments charging him with conducting a small loans business without being licensed, with being an accessоry before the fact to maliciously threatening injury to a person with intent to extort, and with conspiracy. The jury returned verdicts of guilty on each of the indictments and the court sentenced the defendant to not less than six nor mоre than twelve years in State prison in the accessory cases. 1 The trial was held subject to G. L. c. 278, §§ 33A-33G, and the cases are here by appeal.
The defendant filed two assignments of error. These relate to denials by the trial judge of the defendant’s motions for a new trial and his motion to revise or revoke sentence. Thesе motions were based on the judge’s alleged error in considering, on disposition, two prior felony convictions 2 shown in the probation record. In those cases the defendant had pleaded guilty without assistance of сounsel.
After the verdicts were announced at the trial of the instant cases in January of 1967, a hearing was held рrior to the imposition of sentence. The judge read the defendant’s probation record, which contаined notations of the two felony convictions, various other offences, infractions committed while in prisоn, his employment, educational history, military service, residences, family situation and physical and mental cоndition. There was nothing in the probation record to show that the defendant had waived his right to counsel in the two earlier convictions. On January 24, 1967, the judge sentenced the defendant. The defendant did not request a review of the sentences by the Appellate Division of the Superior Court. On March 22, 1967, the defendant filed the motions to revise or revoke sentence. On September 26, 1969, he filed the motions for a new trial. On October 9, 1969, a hearing was held оn the
The defendаnt argues that his prior convictions (referred to in fn. 2) were obtained in violation of the rule later enunciated in
Gideon
v.
Wainwright,
'‘The suggestion that thе defendant be granted a new trial is utterly devoid of any merit. The record of the prior convictions was not intrоduced at the trial of the cases. It could have had no effect whatsoever on the verdicts. Consequеntly, there was no error in the denial of the motions for a new trial.
In regard to the defendant’s contention that the sentences in the accessory cases should be revoked and redetermined, the defendant relies upon the case of
Burgett
v.
Texas,
Where a judge is imposing sentence the situation is far different from that affecting a trial. After the conviction of a defendant, a judge may consider many factors which
In the cases at bar the elimination of the tainted convictions from the defendant’s record could not obscure the fact that the defendant was not a novice in criminal activity. He had been convicted of numerous offences. His record included convictions on charges of larсeny, breaking and entering, attempted breaking and entering, accosting and annoying a person of the opposite sex, possession of burglar’s tools, receiving stolen property, and conspiracy.
It seems particularly meaningful that the judge did reconsider the defendant’s sentences. After hearing the defendant’s motions hе took under advisement the motions to revise or revoke sentence. It is obvious that the judge, with full knowledge of thе Burgett decision, concluded that the sentences originally imposed were fair and reasonable. The judge stаted “¡jf|hat six to twelve in the light of this record, that is not very serious.” Even without considering the two allegedly tainted convictions our review of the record impels us to the same conclusion.
Judgments affirmed.
Notes
Motions for a new trial were made in аll the cases. Motions to revise or revoke sentence were made in the accessory cases.
The probation record, among other items, shows the following: “Breaking & entering, and larceny, nighttime . . . 5/28/52, 2%-3M yrs. State Pris.” “Breaking & entering, and larceny, daytime . . . 6/9/52 — 2 yrs. max. St. Prison.”