MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of stalking, two counts of criminal harassment, seven counts of violation of a harassment prevention order, and attempt to commit a crime (violation of a harassment prevention order). In the defendants direct appeal, we affirmed those convictions. See Commonwealth v. Ecker, 92 Mass. App. Ct. 216 (2017). Before us now is the defendants pro se appeal of the denial of a postconviction motion that he entitled “Motion for Release from Unlawful Restraint or to Correct an Illegal Sentence.”
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We affirm.
The defendants claim that the judge erred in considering his sealed criminal record fails. Even where a criminal record has been sealed, a judge may still consider the sealed record when sentencing the defendant for a new crime. See G. L. c. 276, § 100A, as amended through St. 2010, c. 256, §§ 128-130 (sealed records may be used “in imposing sentence in subsequent criminal proceedings”). The defendant has not demonstrated that the length or structure of the sentences he received violate the governing statutes or are otherwise infirm.
The defendant also argues that his rights against twice being placed in jeopardy were violated. His arguments to this effect are difficult to discern. To the extent that he is arguing that he could not be convicted of more than one crime for the same course of conduct, that is simply incorrect. See Commonwealth v. Arriaga, 44 Mass. App. Ct. 382, 386 (1998), quoting Commonwealth v. Jones, 382 Mass. 387, 393 (1981) (“[s]o long as each offense includes an additional element that the other does not, ‘neither crime is a lesser-included offense of the other, and convictions on both are deemed to have been authorized by the Legislature and hence not duplicative’ ”). To the extent that the defendant argues that he cannot be convicted more than once for the same or a lesser-included offense, that also is incorrect where, as here, the convictions were based on different conduct, including targeting multiple victims. Cf. Commonwealth v. Gouse, 461 Mass. 787, 798-799 (2012). The defendant has shown no double jeopardy violation.
In passing, the defendant argues that the stalking statute is void for vagueness. Putting aside that his claim does not rise to the level of appellate argument required by Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019), and that the claim was not preserved, we discern no merit in it. We agree with the Commonwealth that the defendants reliance on Commonwealth v. Kwiatkowski, 418 Mass. 543, 546 (1994), is misplaced. That opinion turned on a particular drafting issue that the Legislature since has addressed. See Commonwealth v. Alphas, 430 Mass. 8, 12 & n.5 (1999), citing St. 1996, c. 298, §§ 11, 12.
The defendant also seeks to raise issues about the calculation of his parole eligibility date. Any such challenge is not properly before us in this postconviction motion in his criminal case. See Commonwealth v. Melo, 65 Mass. App. Ct. 674, 676-677 (2006). Similarly, his claim that he is illegally being detained as an alleged “sexually dangerous person” pursuant to G. L. c. 123A is also not properly before us in the current appeal.
Finally, the defendants claim that his trial counsel was constitutionally ineffective for failing to request that the trial judge recuse himself is not properly before us, because he did not raise the issue in the motion that is the subject of the current appeal. For the sake of completeness, we add that we would not discern merit in such an argument even if it were properly before us.
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Order dated March 2, 2020, denying motion for release from unlawful restraint or to correct an illegal sentence, affirmed.
FOOTNOTES
2
. Prior to filing that motion, the defendant had filed a letter directly with the Superior Court seeking certain relief. The judge construed the letter as a motion for new trial and denied it. The defendant did not appeal that denial.
3
. A claim of ineffective assistance based on a failure to file a motion cannot succeed without showing “a likelihood that the motion ․ would have been successful.” Commonwealth v. Comita, 441 Mass. 86, 91 (2004). Here, the defendant did not substantiate the factual basis on which he claimed the judge would have been required to recuse himself, and, in any event, what he alleges would not have required the judges recusal. See generally Lena v. Commonwealth, 369 Mass. 571, 575 (1976). Moreover, there is nothing in the record to suggest that the judge exhibited any bias against the defendant at trial or in the sentencing, so the defendant has not shown any prejudice from counsels failure to seek the judges recusal. See Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974) (defendant claiming ineffective assistance must prove not only that counsels behavior fell “measurably below that which might be expected of an ordinary fallible lawyer,” but also that this “likely deprived the defendant of an otherwise available, substantial ground of defence”).