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14-P-43 Appeals Court
COMMONWEALTH vs. JEFFREY LUCKERN.
No. 14-P-43.
Suffolk. December 8, 2014. - April 8, 2015.
Present: Rubin, Milkey, & Carhart, JJ.
Habitual Offender. Practice, Criminal, Sentence.
Indictments found and returned in the Superior Court
Department on May 7, 2013.
A motion to dismiss was heard by Carol S. Ball, J.
Zachary Hillman, Assistant District Attorney (Gretchen P.
Sherwood, Assistant District Attorney, with him) for the
Commonwealth.
David M. Skeels, Committee for Public Counsel Services, for
the defendant.
RUBIN, J. This case concerns the meaning of a provision of
the habitual offender statute, G. L. c. 279, § 25(a), amended by
St. 2012, c. 192, § 47. The question before us is whether a
defendant given a sentence of three years or more in State
prison that is suspended so that the defendant must serve less
2
than three years has been "sentenced to state prison or state
correctional facility or a federal corrections facility for a
term not less than [three] years."
The prior version of the habitual offender statute applied
to those who had "been twice convicted of crime and sentenced
and committed to prison in this or another state . . . for terms
of not less than three years each." G. L. c. 279, § 25, amended
by St. 1904, c. 303. The statute was amended in 2012 so that it
now applies to anyone convicted of a felony who "has been
previously twice convicted and sentenced to state prison or
state correctional facility or a federal corrections facility
for a term not less than [three] years by the commonwealth,
another state or the United States." G. L. c. 279, § 25(a).
Although the wording has changed slightly, we agree with the
parties that there is no material difference between the
language in the new version of the statute, which refers to
being sentenced for a term of not less than three years, and
that in the old statute. Consequently, although the statute has
been amended to remove the reference to "commitment," the
language of the current version with respect to being sentenced
must be read in pari materia with that in the prior version.
The question before us is whether the defendant has two
prior convictions that may serve as predicate convictions for
application of the habitual offender statute. The defendant
3
pleaded guilty to larceny over $250 in Middlesex County in 1995.
He was sentenced to a so-called split sentence: three to four
years in State prison, six months to be served, with the rest of
the sentence suspended for four years under certain conditions.1
The defendant also pleaded guilty to burglary in New Hampshire
in 1984, and was sentenced under a procedure that is unfamiliar
in the Commonwealth. The defendant was originally sentenced to
three and one-half to seven years in New Hampshire State prison
on this conviction, with the judge's order stating that after
one year, if the defendant had been participating in a drug
abuse program and submitting to random screening, and had
received recommendations from both the warden and the
alcohol/drug counselor, he might "apply for review of this
sentence and for transfer to and treatment in a long-term
residential drug treatment facility." After serving one year
and eleven months of his sentence the defendant moved for
1
Such State prison sentences may no longer be given in
Massachusetts. Since the adoption of "truth in sentencing"
twenty years ago Massachusetts judges can no longer order
suspended sentences of incarceration in State prison (in
contrast to sentences in houses of correction). Commonwealth v.
Wilcox, 446 Mass. 61, 65 n.8 (2006) ("the authority to suspend a
sentence of incarceration in a State prison, as opposed to a
house of correction, has been eliminated by G. L. c. 127, § 133,
as appearing in St. 1993, c. 432, § 11 [Truth-in-Sentencing
Act]"). The defendant committed the underlying larceny,
however, prior to the adoption of the truth-in-sentencing
statute, and there is no dispute whether he was properly
sentenced.
4
reconsideration and the same judge granted his motion. His
sentence was suspended and conditions were imposed on that
suspension. It is clear that this was a reconsideration of the
defendant's original sentence. The judge's order did not refer
to the time the defendant had served, nor did it refer to the
suspension of merely "a balance" of the sentence. The defendant
appears to argue that the original sentence was vacated, and
that his new sentence should be understood as a completely
suspended sentence of three and one-half to seven years. We may
assume without deciding that he is correct in his
characterization of the sentence handed down by the New
Hampshire judge and, for purposes of this opinion, will treat it
as a completely suspended sentence.
In the trial court, the parties argued on the basis that
the prior version of the statute was applicable. The defendant
argued in his memorandum in support of his motion to dismiss
below that he was never "committed" on his New Hampshire
sentence, and that the New Hampshire conviction therefore could
not serve as a predicate offense under the old version of the
statute. The Commonwealth argued below only that the
defendant's two prior convictions could serve as predicate
convictions under the old version of the statute. A judge of
the Superior Court concluded that neither conviction met the
requirements of the statute and dismissed the habitual offender
5
charge against the defendant. The Commonwealth has brought this
appeal.
In fact, the applicable version of the statute is not the
old version, but the new one: the defendant's charged conduct
in the indictment at issue occurred in 2013, after the
amendment. Below, the Commonwealth made no argument under the
new version of the statute, but, notwithstanding the rules of
waiver, in a case like this, regardless whether we are required
to address the applicable version of the statute, to do so is,
at the least, within our discretion. "[A] court 'need not
render judgment on the basis of a rule of law whose nonexistence
is apparent on the face of things, simply because the parties
agree upon it.'" United States Natl. Bank v. Independent Ins.
Agents of Am., Inc., 508 U.S. 439, 447 (1993), quoting from
United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J.,
concurring). The Commonwealth may proceed against the defendant
only under the amended, applicable version of the statute.
Whether he could have been charged under the old version is
irrelevant and any opinion we might render on the question would
be advisory. Consequently, we analyze the defendant's
convictions under the amended version of the law. Because the
case presents a pure question of law, we are in as good a
position as the trial judge would be to resolve the matter.
6
Thus, rather than remanding for reconsideration under the
amended statute, we turn to the merits.
On appeal, the defendant no longer contends that he was not
"committed" -– that word has been removed from the statute.
Rather, he argues that he was not "sentenced to state prison or
state correctional facility or a federal corrections facility
for a term not less than [three] years" on either the Middlesex
County conviction or the New Hampshire conviction.2 An appellee,
of course, may seek affirmance on any ground. See Lopes v.
Commonwealth, 442 Mass. 170, 181 (2004).
The question we must address is whether one who is given a
suspended sentence of not less than three years –- suspended in
part or in whole at the time of sentencing so that less than
three years will be served –- has been sentenced for such a
term. We think he has. As we wrote in Commonwealth v. Perry,
65 Mass. App. Ct. 624, 632 (2006), about the prior version of
the statute, "[r]ead together, the terms of the statute require
that a defendant twice be found guilty (convicted), sentenced to
prison (sentenced), and imprisoned for some period of time
(committed). See G. L. c. 279, § 25. Requiring a period of
commitment eliminates from consideration any prior offenses for
2
As this is the only argument put forward by the defendant,
we express no opinion whether there is any other legal reason a
conviction in which a defendant is given a suspended sentence
may not serve as a predicate under the current version of the
statute.
7
which an otherwise qualifying prison term is suspended"
(emphasis added). Put another way, we inferred that commitment
was required by the Legislature precisely because completely
suspended sentences of not less than three years did meet the
statute's requirement of a sentence of that length, and thus
that, in the absence of a requirement of commitment, convictions
in which a defendant received such suspended sentences would
qualify as predicate convictions under the statute.
The defendant observes that this statement in Perry is
dictum, and he asserts that the language of the statute is on
its face ambiguous. Consequently, he argues, we should under
the rule of lenity construe the statute to require an actual,
rather than a suspended, sentence of not less than three years.
See Commonwealth v. Constantino, 443 Mass. 521, 525 (2005) ("if
the statutory language could plausibly be found to be ambiguous,
the rule of lenity requires the defendant be given the benefit
of the ambiguity") (citation omitted).
This argument would have strength if the defendant could
describe a circumstance other than a suspended sentence in which
a defendant could be sentenced to a term of not less than three
years, but not committed. But he has provided no such example.
In the absence of such a circumstance, the implication of the
requirement of commitment in the prior version of the statute is
that a suspended sentence of not less than three years is a
8
"sentence[]" of "not less than [three] years" within the meaning
of the statute. Consequently, we conclude that the defendant
was "sentenced" to terms that meet the requirements of the
habitual offender statute on each of the two convictions at
issue here.
The order dismissing the habitual offender charge is
reversed.
So ordered.