Lewis v. CommonwealthLewis v. Commonwealth
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This is a petition for a writ of error.
On September 29, 1948, the petitioner was found guilty by a jury on an indictment charging him with robbery while armed, and on the same day he was sentenced to the State prison for not more than twenty-five years and not less than twenty years. Thereupon he began to serve his sentence. See
It is the contention of the petitioner that his later sentence is invalid because under it he may be required to serve in all five years and about nine months after a verdict which this court has held valid as a verdict for larceny only, where thére has been no new trial, and although the maximum penalty for larceny is only five years. He contends that the time served under his former sentence should have been deducted when he was sentenced for larceny. The single justice of this court ordered the sentence for larceny affirmed. The case is here on the petitioner’s exceptions.
A comparatively simple and easy solution of the difficulty is to say that the first sentence has been held invalid and so amounted to nothing at all; that no attention need be paid to it; and that the Superior Court was as free to impose the second sentence of the maximum term for larceny as if there had been no previous sentence. It must be conceded that some of the language used in Commonwealth v. Murphy, 174 Mass. 369, affirmed sub nomine Murphy v. Massachusetts, 177 U. S. 155, if taken by itself outside of its context, would seem to lend support to this proposition. A majority of the court, however, is of opinion that this is an oversimplication; that it is not sound; and that it is not supported by the Murphy case.
It is hardly realistic to say that nine months in the State prison amount to nothing — that since the petitioner “should not have been imprisoned as he was, he was not imprisoned at all.”
King
v.
United States,
98 Fed. (2d) 291, 293-294. Moreover, since there is no statute of limitation affecting the filing of petitions for writs of error in criminal cases (
The actual decision in the case of Commonwealth v. Murphy, 174 Mass. 369, to which we have already alluded, is not in conflict with what is here decided. In that case the question presented and decided was whether the second sentence constituted double jeopardy or double punishment. See statement of the court 174 Mass, at page 371, top. There was no question of the period of confinement exceeding the maximum allowed by law. See Commonwealth v. Murphy, 174 Mass. 369, 370; Murphy v. Commonwealth, 172 Mass. 264, 265-266. Whatever was said in Commonwealth v. Murphy to the effect that time served under an earlier erroneous sentence could be ignored in imposing a later corrected sentence was not necessary to the decision of that case. Moreover, as explained by Chief Justice Fuller in Murphy v. Massachusetts, 177 U. S. 155, at page 161, in that case the trial judge in imposing the second sentence did actually deduct the time served under the first sentence.
A fairly extensive search of the cases in other jurisdictions convinces us that the weight of authority is in favor of the position here taken. Few of the cases present the exact question whether the sum of the new sentence and of the time served under the invalid sentence may exceed the maximum sentence provided by statute;
1
but it has been held in a number of cases where the conviction was proper but there was error in the sentence only that allowance must be made in the corrected sentence for time served under the
It should be noted that in all we have said we have been dealing only with a case where the verdict of guilty is valid and stands, and the only error is in the sentence. Where the “error occurs in the proceedings before sentence and necessitates a new trial and not merely a resentence, it seems to be rather generally understood that time served under the sentence which is invalidated need not as matter of law be considered in imposing the second sentence, the reason given being that in seeking a new trial the defendant must be deemed to have consented to a wiping out of all the consequences of the first trial.
McDowell
v.
State,
225 Ind. 495, 498-500.
People
v.
Trezza,
128 N. Y. 529, 536.
Ex parte Wilkerson,
76 Okla. Crim. Rep. 204.
Ogle
v.
State,
43 Tex. Crim. Rep. 219, 233-234.
In re Doelle,
323 Mich. 241 (but compare
In re Wall,
330 Mich. 430, 435-436).
State
v.
Murphy,
248 Wis. 433. See
Commonwealth
v.
Murphy,
174 Mass. 369, 371. The decisions generally, however, do not clearly distinguish cases of this class from
Another question in the case is whether the petitioner is entitled upon a new sentence to the benefit of any deductions for good conduct and satisfactory and diligent performance of work as provided in
The result of this opinion is that the petitioner’s exceptions are sustained; that the sentence for larceny heretofore imposed upon him is reversed; and that the case is remanded to the Superior Court (
So ordered.
Williams, J.
I am unable to agree with the opinion of the majority of the court. Although, in imposing sentence, the judge of the Superior Court could have taken into consideration the petitioner’s previous imprisonment, he was not bound to do so.
Commonwealth
v.
Murphy,
174 Mass. 369, 372. If the imprisonment, which in fact was served on a sentence for robbery, “be treated as having in effect been served for larceny,” it would seem to follow that the sentence should be treated as having been imposed for larceny. The sentence was vacated by our reversal of the judgment.
Commonwealth
v.
Novicki,
324 Mass. 461. We held it to have been illegally imposed because of the lack of evidence to prove the robbery as charged. Treated as a sentence for larceny it was also illegal not because of the insufficiency of the evidence to prove larceny but because it provided for a term longer than is permitted for larceny. In
Commonwealth
v.
Murphy, supra,
a case where the judgment had been reversed because of error in the sentence, it was said (page 372), “a judgment and sentence reversed are the same as if
Notes
This precise question seems to have been decided in In the Matter of Leypoldt, 32 Cal. App. (2d) 518, and in Kozlowski v. Board of Trustees of the New Castle County Workhouse, 32 Del. 29 (overruled on another point, Biddle v. Board of Trustees of New Castle County Workhouse, 33 Del. 425). Substantially the same question seems to have been decided in People v. Huber, 389 Ill. 192, and People v. Gilbert, 163 Mich. 511. See King v. United States, 98 Fed. (2d) 291, 295, note. All those cases tend to support the present opinion.
In re Wilson, 202 Cal. 341. D’Alessandro v. Tippins, 98 Fla. 853. Jackson v. Commonwealth, 187 Ky. 760, 764. In re Wall, 330 Mich. 430, 435-436. Laury v. State, 187 Term. 391, 394. Stonebreaker v. Smyth, 187 Va. 250, 264. State v. Mehlhorn, 195 Wash. 690, 693. Tinkoff v. United States, 86 Fed. (2d) 868, 880. Contra: People v. Williams, 404 Ill. 624 (but compare People v. Heard, 396 Ill. 215, 220-221).
Youst v. United States, 151 Fed. (2d) 666, 668. Ekberg v. United States, 167 Fed. (2d) 380, 387. But see Kite v. Commonwealth, 11 Met. 581, 585; Smith v. Lovell, 146 Maine, 63, 67.
Commonwealth v. Burke, 361 Pa. 35, 42. Bennett v. Hollowell, 203 Iowa, 352.