Opinion
13-P-1838
07-14-2015
COMMONWEALTH v. RANDY ROBY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals pro se from the denial of his motion to vacate his convictions., He claims that he is entitled to relief because the trial judge's partial allowance of his motion for required findings of not guilty, which reduced the defendant's five counts of rape of a child by force to three counts of indecent assault and battery on a child and two counts of statutory rape, of which he was eventually convicted, was essentially an acquittal of all charges. Also, in his view, the result was to materially change the work of the grand jury and create a double jeopardy violation. Finally, the defendant argues that his trial and appellate counsel were ineffective for failing to raise these claims. We affirm.
The defendant's convictions were affirmed on direct appeal. Commonwealth v. Roby, 462 Mass. 398 (2012). The motion now before us appears to have been brought pursuant to Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001).
In denying the motion without a hearing, the trial judge opined, "The arguments made in support of the motion a[re] so pat[]ently without legal merit that no discussion is required."
The defendant's arguments are meritless. The counts on which the defendant was ultimately convicted were all lesser included offenses of the initial five counts of rape of a child by force. See Commonwealth v. Franks, 365 Mass. 74, 78 (1974) (statutory rape is a crime included within the crime of forcible rape); Commonwealth v. Howze, 58 Mass. App. Ct. 147, 150 (2003) ("[I]ndecent assault and battery [of a child] is a lesser included offense of statutory rape"). Hence, the trial judge's reduction of the offenses was to the defendant's benefit, and did not impair the "substance of the [accused's] constitutional rights secured under the grand jury system." Commonwealth v. Sitko, 372 Mass. 305, 308 (1977), quoting from Commonwealth v. Snow, 269 Mass. 598, 606 (1930) (concluding that an amendment of an indictment reducing the crime charged to a lesser offense does not violate the defendant's constitutional rights).
Moreover, contrary to the defendant's argument, since the reduction in charges did not amount to an acquittal, there was no double jeopardy violation. Finally, counsel cannot be ineffective for failing to raise issues that are groundless. See Commonwealth v. Filoma, 79 Mass. App. Ct. 16, 24 (2011) ("[C]ounsel's omission of a futile tactic constituted no fault, caused the defendant no harm, and will not support any claim of ineffective assistance").
Order denying motion to vacate convictions affirmed.
By the Court (Trainor, Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 14, 2015.