MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Lance E. Porter, appeals from the denial of his motion for resentencing. The defendant received a sentence of two and one-half years consecutive to his probation violation sentence, and the judge properly denied the defendants motion, which would have had the effect of making that sentence concurrent to the probation violation sentence. Accordingly, we affirm.
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1. Background. On April 7, 2011, a Superior Court judge found the defendant in violation of the terms of probation on a conviction of kidnapping, G. L. c. 265, § 26, and sentenced him to eight to ten years in State prison. On February 28, 2013, a Superior Court jury convicted the defendant of attempted kidnapping, G. L. c. 274, § 6, and assault and battery, G. L. c. 265, § 13A (a). A second judge sentenced the defendant to four years and eleven months to five years in State prison for the attempted kidnapping and to two and one-half years in a house of correction for the assault and battery. Both sentences were consecutive to the 2011 kidnapping sentence but concurrent with each other.
The defendant appealed his attempted kidnapping conviction. The defendants argument on appeal was that, because he completed the offense of kidnapping, the Commonwealth failed to prove the element of noncompletion for the attempt. After briefing, but before oral argument, the Supreme Judicial Court held that noncompletion of the offense is not an element of attempt. Commonwealth v. LaBrie, 473 Mass. 754, 765 (2016). Nonetheless, the Commonwealth “decided that it was in agreement with the defendants argument” and agreed to vacate the conviction. The defendant then withdrew his appeal.
The Commonwealth re-indicted, this time for a completed kidnapping. On February 13, 2017, the defendant pleaded guilty to kidnapping. At this point, he still had approximately three years to serve on the 2011 probation violation sentence. Consistent with the plea agreement, a third judge sentenced the defendant to two years to two years and one day in State prison, concurrent with the 2011 probation violation sentence. Defense counsel stated at the plea hearing that the defendant would still serve the assault and battery sentence after the 2011 probation violation sentence and thus would be incarcerated for, approximately, the next five and one-half years. The defendant stated that he understood.
On June 2, 2020, a fourth judge allowed the Commonwealths belated motion to vacate the attempted kidnapping conviction. Represented by new counsel, the defendant then filed a motion for resentencing on the assault and battery conviction so that it would be concurrent with the 2011 sentence and the 2017 sentence (and thus completely served). The third judge heard this motion and saw no reason to change the sentence for the assault and battery to make it concurrent with the 2011 probation violation sentence. This appeal followed.
2. Discussion. The defendant argues that, because the assault and battery sentence was concurrent with the attempted kidnapping sentence, it necessarily must be concurrent with the 2017 kidnapping sentence. In fact, the opposite is true. The second judge made the assault and battery conviction consecutive to the 2011 probation violation sentence and concurrent with the attempted kidnapping sentence that no longer exists. It was far too late in 2020 to request resentencing on the assault and battery conviction, which had been sentenced on February 28, 2013. See Mass. R. Crim. P. 29 (a) (2), as appearing in 474 Mass. 1503 (2016); Commonwealth v. Fenton F., 442 Mass. 31, 36 (2004).
The defendant also argues, for the first time on appeal, that his guilty plea was not intelligent because he had “no notice” of how the assault and battery sentence would be calculated. “A guilty plea is intelligent if it is tendered with knowledge of the elements of the charges against the defendant and the procedural protections waived by entry of a guilty plea.” Commonwealth v. Wentworth, 482 Mass. 664, 679 (2019), quoting Commonwealth v. Scott, 467 Mass. 336, 345 (2014). “Advice as to the statutorily prescribed sentence, or that to be imposed upon acceptance of the plea, is not among the ‘consequences of the plea’ necessary for a plea to be intelligent under the Federal or State constitutions.” Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 641-642 (2007). In any event, the record of the plea colloquy directly contradicts the defendants claim. The defendant was specifically told that he would be incarcerated for “around five and a half years,” first three years on the probation violation and then “[t]wo and a half after that.” He pleaded guilty with full knowledge that he would have to serve his sentence on the assault and battery conviction after he completed serving the 2011 probation violation sentence. Accordingly, the third judge properly denied the defendants motion.
Order dated December 7, 2020, denying motion for resentencing affirmed.
FOOTNOTES
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. Although the defendant has served the sentences, we are unconvinced that the case is moot, as success for the defendant would at least provide him with a basis, whether or not ultimately successful, to challenge the Commonwealths petition to commit him as a sexually dangerous person (SDP). See Coffin v. Superintendent, Mass. Treatment Ctr., 458 Mass. 186, 187 (2010) (“We conclude that under [G. L. c. 123A,] § 12 [b], as properly construed, an individual incarcerated for violating the terms of an unconstitutional sentence is not a ‘prisoner’ subject to civil commitment as an SDP”). We may decide the case where “it has not been demonstrated to us that it is impossible” for our decision to affect the appellants legal rights in the future. Ralph v. Civil Serv. Commn, 100 Mass. App. Ct. 199, 201 n.4 (2021).