Commonwealth v. Vincent Howard Lucas.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-35

COMMONWEALTH

vs.

VINCENT HOWARD LUCAS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2018, a jury convicted the defendant, Vincent Lucas, of

one count of assault with intent to rape in violation of G. L.

c. 265, § 24, and one count of assault and battery in violation

of G. L. c. 265, § 13A (a). After a jury-waived trial, a judge

of the Superior Court found the defendant guilty as a habitual

offender under G. L. c. 279, § 25 (a), and sentenced him to

twenty years in State prison on the conviction for assault with

intent to rape.1 The defendant appeals the denial of his motion

for resentencing under Mass. R. Crim. P. 30 (a), as appearing in

435 Mass. 1501 (2001). He cites Commonwealth v. Montarvo, 486

1The defendant was sentenced to two and one-half years in
the house of correction, suspended for twenty years, on the
assault and battery conviction.
Mass. 535 (2020), for the proposition that, because the

sentencing judge did not believe he possessed the discretion to

impose probation, the defendant was entitled to be resentenced.

We disagree and affirm the judge's denial of that motion.

Background. The following facts are summarized from the

transcript of the jury trial, which occurred from July 23, 2018,

to July 26, 2018.2 On the night of August 15, 2017, the victim

traveled to Lowell planning to "[t]urn tricks" to obtain drugs.

While at a convenience store, the victim saw a woman whose name

she thought was Lisa, and told her that she wanted to "get

high." The defendant, who was with Lisa, claimed he had twenty

dollars and offered to "go get some stuff," referring to "crack"

cocaine. Eventually the three met a drug dealer, but, when the

defendant admitted he did not have any money, Lisa and the drug

dealer walked away.

The defendant, now alone with the victim, told her that he

had crack, showed her a rolled-up tissue, and convinced her to

follow him to a secluded area near a canal to use it. There the

defendant grabbed her, pushed her against a rock wall with her

head dangling above the canal, and said, "You want to smoke;

right? You want to smoke?" The victim understood the defendant

2 We note that, although both parties cite to the trial
transcripts, neither filed the transcripts with the court.

2
to be demanding sex in exchange for the drugs and repeatedly

told the defendant, "No." The defendant then took the victim to

a nearby grassy area, where he removed her shorts and underwear

and penetrated her vagina and anus with his fingers. The

defendant yelled, "You're going to die" and "I'm going to kill

you," then strangled her with both hands until she lost control

of her bowels. As soon as he took his hands from her neck, the

victim grabbed her shorts and eyeglasses and ran, leaving her

underwear and flip-flops behind.

The victim, with feces on her feet and red marks on her

neck, was able to run and scream for help. She gained the

attention of a police cruiser and told the officer she had just

been raped in a nearby park. In the park, police found the

victim's feces-stained underwear and flip-flops.3

The defendant's defense at trial was that the victim

fabricated the incident and that the victim was not credible

because she was a drug user and a prostitute trading sex for

drugs. The jury found the defendant guilty of assault with

intent to rape and assault and battery and returned not guilty

verdicts on two counts of rape and one count of suffocation or

3 After the victim was taken to a nearby hospital, an
officer saw the defendant, at the same hospital, wearing the
clothing the victim had described. From a photographic array,
the victim identified the defendant as the assailant.

3
strangulation. After a jury-waived trial, the defendant was

found guilty as a habitual offender under G. L. c. 279,

§ 25 (a), and sentenced to twenty years in State prison on the

assault with intent to rape conviction.

The defendant appealed his convictions and the denial of

his motion for a new trial. See Mass. R. Crim. P. 30 (b), as

appearing in 435 Mass. 1501 (2001). In an unpublished

memorandum and order in 2022,4 we affirmed the defendant's

convictions and the denial of the motion for a new trial. In

September 2024, the defendant filed a motion for postconviction

relief, arguing that he was entitled to be resentenced under

Montarvo. The sentencing judge denied the motion, and this

appeal followed.

Discussion: "Colloquially referred to as the 'three

strikes' law, the habitual offender statute, G. L. c. 279, § 25,

enhances the penalty for a defendant who, after two prior

convictions resulting in State or Federal prison sentences of

three or more years, receives a third felony conviction."

Montarvo, 486 Mass. at 535. In Montarvo, the Supreme Judicial

Court found this statute ambiguous and applied the rule of

lenity to "read § 25 (a) to provide sentencing judges with the

discretion to impose probation." Id. at 542.

4 See Commonwealth v. Lucas, 100 Mass. App. Ct. 1125 (2022).

4
The defendant argues that, at the time of sentencing, the

judge did not believe that he could impose probation on his

conviction as a habitual offender under G. L. c. 279 § 25 (a).

A review of the sentencing transcript appears to support the

defendant's position that the sentencing judge believed that he

was required to impose the maximum sentence.5 After the

defendant was sentenced, the Supreme Judicial Court announced in

Montarvo that a sentencing judge has the authority to sentence a

habitual offender to a term of probation. The defendant argues,

therefore, that the judge erred in denying his motion to be

resentenced. We disagree.

Here, in ruling on the defendant's rule 30 (a) motion, the

judge made the following order: "DENIED. Under no

circumstances would this Court have given defendant a

probationary sentence, or a different sentence than he received,

knowing that the Court could impose probation as an alternative

to the sentence that was imposed. See Commonwealth v. Lemay, 11

Mass. App. Ct. 992, 993 (1981)." Contrary to the defendant's

position, Montarvo does not require a resentencing hearing

where, as here, the judge would have ordered the same sentence

5 In an exchange with the Commonwealth, which was requesting
that the defendant be sentenced to the maximum penalty as a
habitual offender, the judge said, "I'm required to impose the
maximum sentence." The prosecutor agreed, stating, "Correct."

5
even if he had been aware that probation was a sentencing

option. Rather, Montarvo simply permits a judge to impose

probation on a conviction under the habitual offender statute.

Here, the sentencing judge (who was also the trial judge),

clearly articulated that "under no circumstances" would he have

given the defendant a probationary sentence, or a different

sentence, knowing that probation could have been imposed. We

cannot find error "where the record makes clear that probation

would not have been considered in any event as an alternative to

the sentence mandated by the statute." Lemay, supra.

Order denying postconviction
relief affirmed.

By the Court (Walsh, Toone &
Tan, JJ.6),

Clerk

Entered: February 10, 2026.

6 The panelists are listed in order of seniority.

6