10 Mass. App. Ct. 907 | Mass. App. Ct. | 1980
After pleading guilty to indictments charging breaking and entering in the nighttime (two indictments Nos. 6575 & 6576), robbery while masked (No. 6577) and carrying a firearm (handgun) without being properly licensed (No. 6578), the defendant was sentenced to consecutive two-year terms on the breaking and entering indictments (Nos. 6575 & 6576), to a (mandatory) one-year concurrent term with the sentence on No. 6575 and to five years’ probation from and after the sentence on indictment No. 6576.
1. The defendant claims that the sentencing judge violated his constitutional rights by doubling his sentence because of his refusal to testify against his codefendant. At the time of sentencing the defendant indicated that he would not testify against a codefendant; however, the judge indicated that if the defendant changed his mind and testified, he would revoke the defendant’s sentence and revise it to the Commonwealth’s original recommendation of two years in a house of correction. Compare Osborne v. Commonwealth, 378 Mass. 104, 115 (1979), and cases cited.
We reject the defendant’s claim of deprivation of his constitutional rights by the sentencing judge. It would take a strained view of the sen
2. The defendant also claims that a different judge
In light of the recent opinion of the United States Supreme Court in Roberts v. United States, supra, and the original sentencing judge’s indication that he would reduce the sentence if the defendant changed his mind, we reverse the denial of the defendant’s motion to revise and revoke and remand this case to the Superior Court to consider the defendant’s fear of physical retaliation as a factor in his refusal to testify.
So ordered.
The sentencing judge was no longer a member of the Superior Court.