Opinion
February 3, 1995.
Practice, Criminal, Sentence.
The case was submitted on briefs.
Wendy Sibbison for the defendant.
William M. Bennett, District Attorney, Judy Zeprun Kalman Judith Ellen Pietras, Assistant District Attorneys, for the Commonwealth.
On reconsideration of the application, we granted further appellate review in this case limited to the question whether the Appeals Court erred in not ordering resentencing on a conviction of armed robbery while masked when it ordered sentencing on the defendant's conviction of assault with intent to murder. Commonwealth v. Gagnon, 37 Mass. App. Ct. 626 (1994). The Appeals Court had reduced the verdict of armed assault with intent to murder to assault with intent to murder and ordered sentencing on the revised verdict.
The record shows that the sentencing judge considered the defendant's shooting behavior when he sentenced on the armed robbery conviction. Consequently, it is appropriate to vacate the armed robbery sentence as well and to remand the armed robbery conviction (indictment no. 77-2666) for resentencing. Cf. Commonwealth v. Clermy, 37 Mass. App. Ct. 774, 779 (1995).
Accordingly, we revise the Appeals Court order to reflect this change. The sentences imposed on indictment nos. 77-2669 (armed assault with intent to murder) and 77-2670 (attempted murder) are vacated, and the judgment of conviction on indictment no. 77-2670 is reversed. The case is remanded to the Superior Court, where indictment no. 77-2670 is to be dismissed as duplicative, and the docket entries for indictment no. 77-2669 are to be revised to reflect the verdict of guilty of simple assault with intent to murder, G.L.c. 265, § 15 (1992 ed.). The defendant is to be resentenced on the latter conviction. The sentence imposed on indictment no. 77-2666 (armed robbery while masked) is vacated, and the defendant is to be resentenced on that conviction. The sentences on indictment nos. 77-2669 and 77-2666 shall run concurrently, with credit for time served. As to the other charges, the order denying the motion for postconviction relief is affirmed.
So ordered.