Commonwealth v. Resende

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SJC-11849

COMMONWEALTH vs. ADMILSON RESENDE.

Plymouth. December 10, 2015. - June 9, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Firearms. Practice, Criminal, Motion to suppress, Sentence.

Indictments found and returned in the Superior Court
Department on August 26, 2011.

Pretrial motions to suppress evidence were heard by Charles
J. Hely, J., and a motion for reconsideration was considered by
him; and the cases were heard by Frank M. Gaziano, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Patrick Levin, Committee for Public Counsel Services, for
the defendant.
Carolyn A. Burbine, Assistant District Attorney, for the
Commonwealth.

BOTSFORD, J. In a jury-waived trial in June, 2014, a

Superior Court judge found the defendant, Admilson Resende,

guilty of several firearms offenses, each of which had
 2

associated with it an armed career criminal sentence enhancement

charge under G. L. c. 269, § 10G (§ 10G), the Massachusetts

armed career criminal act (Massachusetts ACCA). After a

separate jury-waived trial on the enhancement charges, the judge

sentenced the defendant under § 10G (c) to a mandatory minimum

State prison term of from fifteen years to fifteen years and one

day. In his appeal from these convictions, the defendant

presents an unanswered question about the proper interpretation

of § 10G, which provides sentence enhancements for designated

firearms offenses where a defendant previously has been

convicted of one or more "violent crimes" or "serious drug

offenses," or a combination of the two. For reasons we shall

explain, we interpret § 10G to mean that where the previous

convictions of predicate offenses forming the basis of the

sentence enhancement charge were all part of a single

prosecution, they properly should be treated as a single

predicate conviction. In this case, therefore, the defendant's

previous drug offense convictions, which were part of a single

prosecution, should have been considered as one previous

conviction that would be punishable under § 10G (a) rather than

§ 10G (c).1

1
In addition to his claim concerning the sentence imposed
under G. L. c. 269, § 10G (§ 10G), the defendant challenges the
denial of his pretrial motions to suppress evidence. We
 3

1. Background. a. Prior drug convictions. On August 22,

2006, when the defendant was nineteen years old, he was arrested

and charged with five counts of distribution of cocaine and one

count of possession of cocaine with intent to distribute, G. L.

c. 94C, § 32A (a). The five distribution counts arose from

hand-to-hand transactions that took place on five different days

within a seventeen-day period from August 5 through August 22,

2006; the possession with intent count arose from the

defendant's actions on August 22, 2006. All of the counts were

included in a single set of charges. On January 23, 2007, the

defendant pleaded guilty to the distribution charges as part of

a single plea proceeding, and received concurrent house of

correction sentences.2

b. Convictions at issue in this appeal. i. Procedural

history. On August 26, 2011, a grand jury returned indictments

against the defendant for unlawful possession of a firearm,

G. L. c. 269, § 10 (a); unlawful possession of a loaded firearm,

G. L. c. 269, § 10 (n); unlawful possession of a firearm or

ammunition without a firearm identification card, G. L. c. 269,

§ 10 (h); and unlawful possession of cocaine with intent to

distribute, subsequent offense, G. L. c. 94C, § 32A (c) and (d).

conclude in this opinion that the defendant's motions to
suppress were properly denied.
2
The possession with intent charge was placed on file.
 4

Each of the firearms offenses carried a concomitant sentence

enhancement charge under § 10G. On May 7, 2012, the defendant

filed motions to suppress the physical evidence seized by the

police and his postarrest statements. After an evidentiary

hearing, a Superior Court judge (motion judge) denied the

motions on December 4, 2012. On June 30, 2014, at the

conclusion of a bench trial on all charges other than the

sentence enhancement charges, a different Superior Court judge

(trial judge) found the defendant guilty of unlawful possession

of a firearm, unlawful possession of a loaded firearm, and

unlawful possession of a firearm or ammunition without a firearm

identification card; he found the defendant not guilty of

possession of cocaine with intent to distribute. Thereafter,

the trial judge in a separate bench trial found the defendant

guilty of two of the armed career criminal sentence enhancement

charges as a person previously convicted of three or more

serious drug offenses, and imposed the mandatory minimum

sentence.3,4

3
The defendant's conviction of unlawful possession of a
loaded firearm and the accompanying armed career criminal charge
were dismissed by agreement.
4
At the conclusion of the trial on the sentence enhancement
charges, the trial judge denied the defendant's request for a
required finding that each of the previous drug charges did not
constitute a separate predicate offense under the Massachusetts
armed career criminal act (ACCA).
 5

ii. Facts.5 On May 28, 2011, State police Trooper Erik

Telford was on patrol in Brockton with Sergeant Michael

McCarthy. Telford had substantial experience working as a

member of law enforcement units focused on individuals involved

in guns, violence, and drugs in urban areas, and he had worked

specifically in Brockton and with the Brockton police. At

approximately 11:40 P.M., Telford and McCarthy, driving in an

unmarked police vehicle, were near the intersection of Ames and

Intervale Streets, where, on one corner, a bar was located. The

neighborhood was an area where Telford had been assigned to work

since 2003, and he had made numerous arrests for gun offenses as

well as drug offenses in this area. Telford saw a young man,

the defendant, walking with two women on the opposite side of

Intervale Street, and believed that the defendant made eye

contact with him. The defendant was wearing a long polyester

jacket that extended past his hips and covered his pants

pockets. Telford noticed the jacket because it was not a

particularly cold night and Telford himself was not wearing a

jacket. Telford saw the defendant move his hand under the

jacket and into the waistband area underneath his shirt, and

5
The facts are taken primarily from the findings made by
the motion judge in ruling on the defendant's motions to
suppress; the judge's findings are themselves based primarily on
the testimony of Trooper Erik Telford and Sergeant Michael
McCarthy of the State police, witnesses whom the motion judge
found to be "highly credible."
 6

became suspicious that the defendant was carrying a gun.

Telford also believed that the defendant appeared similar to a

man depicted in a bulletin that had been posted at various

locations in the Brockton police station.6

Telford turned his vehicle around, "and waited in the

vicinity of the [bar]." As he did so, the defendant and the two

women walked through the bar's parking lot toward the front door

of the bar.7 Telford and McCarthy left their vehicle and

approached the defendant, while wearing clothing marked "State

Police," with their badges and guns clearly visible. As he

approached, Telford noticed that the defendant had his right

hand out of his pocket and at his waist area. Telford asked the

6
On or about May 25, 2011, Brockton police Officer Robert
Saquet posted bulletins containing a photograph of a young
African-American man holding a "TEC-9" automatic pistol in the
Brockton police station detectives' office and the report room,
where uniformed officers write their reports; the name of the
man depicted in the photograph was not provided. Trooper Erik
Telford had seen one of the bulletins while in the Brockton
police station within a few days of May 28, 2011. Although at
some point the Brockton police learned the name of the person
depicted, who was not the defendant, and added the name to the
bulletin, the original version viewed by Telford had not had a
name added to it.

The motion judge found that the defendant shared similar
basic characteristics with the man in the bulletin, including
height, approximate age, facial hair, and wearing of a baseball
cap, and noted that these similarities could apply to many men
in the Brockton area.
7
The motion judge did not make any finding about precisely
when the two police officers drove into the bar parking lot
itself, or about where the officers parked their vehicle in
relation to the entrance to the bar.
 7

defendant his name, and the defendant gave his correct name in

response. Telford then remembered that he had encountered the

defendant in connection with a search of a residence pursuant to

a warrant -- a search that had resulted in the discovery of two

guns. At this point, Ryan Guinta, a bouncer at the bar, came

out of the bar and told the officers that the defendant had been

in the bar all night. Telford knew that this was not true, and

told Guinta to go back inside, which he did.

Telford motioned to the defendant to follow him to a

different part of the parking lot where they could speak

further. As the defendant walked to this location, Telford

noticed that the defendant had his right hand in his pocket but

was holding it close to his body at the waistband area, and that

the defendant "bladed away" from him.8 During the ensuing

conversation, the defendant, with his right hand in his pocket,

made movements that appeared to Telford to be retention checks -

- touching the area where a weapon or heavy object is located to

ensure it stays in place because it is not holstered. Telford

recognized these types of movements as being consistent with

someone who is carrying a weapon in his waistband. Telford

asked the defendant to remove his right hand from his pocket,

8
Telford testified that "blading away" refers to the action
of creating a thin profile of oneself with respect to another
viewpoint, effectively hiding one side of the body from the
other person's view.
 8

which the defendant did briefly, before putting it back into the

pocket. Telford asked the defendant again to remove his right

hand from his pocket, which he did, and then the defendant

touched an area near his waistband, consistent with another

retention check. After noticing that the defendant was looking

from left to right, as if to attempt to flee, Telford asked him

to lift his shirt, twice. The defendant did so, but both times

exposed only the left side of his waistband, where Telford saw

nothing. At this point, because the officers were convinced

that the defendant was carrying a gun, they decided to handcuff

him, but before the handcuffs were applied, Telford reached to

the right side of the defendant's waistband and retrieved a gun

containing one round of ammunition in the chamber and at least

one other round in the gun magazine. The officers arrested the

defendant for unlawfully carrying a firearm and advised him of

the Miranda rights. After stating that he understood his

rights, the defendant said that he had obtained the gun in

Providence, Rhode Island, the cost was $750, the gun was not

stolen, and it had serial numbers. In a subsequent search of

the defendant incident to his arrest, the officers found plastic

bags containing cocaine and, when asked if the bags contained

more than fourteen grams, the defendant responded that they did

not.
 9

2. Discussion. a. Motions to suppress. On review of a

ruling on a motion to suppress, "we accept the judge's

subsidiary findings of fact absent clear error 'but conduct an

independent review of his ultimate findings and conclusions of

law'" (citation omitted). Commonwealth v. Scott, 440 Mass. 642,

646 (2004). We "make an independent determination of the

correctness of the judge's application of constitutional

principles to the facts as found" (citation omitted). Id.

The defendant argues that the denial of his motions to

suppress was error because he was seized without reasonable

suspicion -- a contention turning primarily on the propriety of

the motion judge's ruling that no seizure of the defendant

occurred at least until the defendant was directed to go speak

with Trooper Telford in a different area of the parking lot from

where the officers first encountered him. The defendant

contends that this ruling was incorrect because, contrary to the

motion judge's findings, the uncontradicted testimony of Telford

showed that as the defendant approached the front door of the

bar, the officers "cut off [the defendant's] path of travel and

immediately got out of their car and approached him" with their

guns and badges displayed. In doing so, the defendant argues,

the officers effectuated a seizure of his person at that point,

because a reasonable person would not have felt free to leave

under those circumstances. The defendant contends further that,
 10

at this point in time, the officers did not have a reasonable

suspicion of any criminal activity, and accordingly, all of the

officers' actions that followed, culminating in the defendant's

arrest, were constitutionally prohibited and his motions to

suppress should have been allowed. The Commonwealth argues that

the motion judge correctly concluded that there was no seizure

of the defendant until he was directed to a different area of

the parking lot, at which time the officers had a reasonable

suspicion that the defendant was illegally carrying a gun, and

their subsequent, measured actions fit well within the scope of

a permissible stop, frisk, and seizure pursuant to Terry v.

Ohio, 392 U.S. 1 (1968). We agree with the Commonwealth.

We reject the defendant's challenge to the motion judge's

factual findings. As previously stated, the judge did not make

a specific finding as to when the two officers drove into the

parking lot,9 but insofar as the findings may suggest that the

officers entered the parking lot and came to a stop before the

defendant and his two companions reached the bar's door and at a

distance that permitted them to do so, the testimony of Sergeant

McCarthy supports that view.10 Accordingly, we do not agree with

9
See note 7, supra, and accompanying text.
10
McCarthy testified that "when [he] pulled into the
parking lot with Trooper Telford, . . . the defendant and the
two females continue[d] to walk towards the entrance of the
[bar]."
 11

the defendant that the judge made clearly erroneous findings

concerning the initial encounter between the defendant and the

two officers. Rather, our review of the motion record persuades

us that the judge was warranted in concluding that the officers'

exit from their vehicle with their State police identification

and weapons visible, followed by Telford's question asking the

defendant for his name, was not itself a stop or seizure in the

constitutional sense. See, e.g., Commonwealth v. Narcisse, 457

Mass. 1, 5-6 (2010) (no seizure where officers pulled alongside

defendant and got out of vehicle, asking defendant's name and

what he was doing in vicinity); Commonwealth v. Gomes, 453 Mass.

506, 510 (2009) (defendant not seized when police got out of

vehicles quickly and approached him as he stood in doorway; no

indication that police activated blue lights); Commonwealth v.

Lopez, 451 Mass. 608, 610-614 (2008) (two uniformed officers in

two marked patrol cruisers followed defendant on bicycle late at

night; one officer emerged from cruiser, and asked, "Can I speak

with you?" after which defendant approached him; officer's

actions did not constitute seizure); Commonwealth v. DePeiza,

449 Mass. 367, 370-371 (2007) (no seizure where police got out

of unmarked vehicle and approached defendant, while engaging in

brief conversation).

The motion judge determined that a limited "intrusion" --

i.e., seizure -- occurred when Telford requested or directed the
 12

defendant to walk to a different part of the parking lot to talk

to the trooper, and that this seizure was justified in the

circumstances. We agree. By that point, Telford had observed

the defendant holding his hand at his waist in a manner that

Telford believed from his training and experience was consistent

with someone holding a gun in the waistband of his pants.

Moreover, before speaking with the defendant at the new location

in the parking lot, Telford had observed the defendant "blading"

away from him and making motions with his hand that were

consistent with weapon retention checks. We also agree with the

motion judge that Telford's series of increasingly intrusive

actions that followed -- asking the defendant to take his hands

out of his pocket, then asking the defendant to raise his shirt,

then reaching for the defendant's hands and putting them behind

his back, and then grabbing a gun from the defendant's waist

area on his right side -- were all reasonable responses to new

information supplied by the defendant's actions that provided an

increasingly robust basis for suspecting the defendant was

holding a concealed gun in his pants on the right side of his

body. The seizure of the defendant effectuated by Telford and

McCarthy was constitutionally proper. See DePeiza, 449 Mass. at

371. Cf. Commonwealth v. Torres, 433 Mass. 669, 675 (2001)

(officer's actions no more intrusive than necessary at each
 13

phase of increasingly suspicious interaction with defendant and

passengers in vehicle during traffic stop).

b. Defendant's armed career criminal status. The

defendant argues that his armed career criminal convictions

cannot stand because his five previous drug convictions were

encompassed in a single prosecution. As such, he claims, the

convictions should be counted as a single predicate offense for

purposes of § 10G, and therefore within the scope of level one,

see § 10G (a), rather than level three, see § 10G (c). The

Commonwealth takes the position that, under § 10G, similar to

the enhancement scheme under 18 U.S.C. § 924(e) (2006), the

Federal armed career criminal act (Federal ACCA), each

qualifying violent crime or serious drug offense of which a

defendant has previously been convicted represents a separate

predicate offense for purposes of determining sentence

enhancement levels, regardless of whether those previous

convictions were the result of a single or several prosecutions.

Although this court has considered questions concerning the

proper interpretation of § 10G in prior cases,11 the issue raised

here is one of first impression.

11
See, e.g., Commonwealth v. Eberhart, 461 Mass. 809
(2012); Commonwealth v. Anderson, 461 Mass. 616, cert. denied,
133 S. Ct. 433 (2012); Commonwealth v. Johnson, 461 Mass. 44
(2011); Commonwealth v. Furr, 454 Mass. 101 (2009). The Appeals
Court has as well. See, e.g., Commonwealth v. Colon, 81 Mass.
 14

Section 10G provides in relevant part:

"(a) Whoever, having been previously convicted of a
violent crime or of a serious drug offense, both as defined
herein, violates the provisions of paragraph (a), (c) or
(h) of [§] 10 shall be punished by imprisonment in the
state prison for not less than three years nor more than
[fifteen] years.

"(b) Whoever, having been previously convicted of two
violent crimes, or two serious drug offenses or one violent
crime and one serious drug offense, arising from separate
incidences, violates the provisions of said paragraph (a),
(c) or (h) of said [§] 10 shall be punished by imprisonment
in the state prison for not less than ten years nor more
than [fifteen] years.

"(c) Whoever, having been previously convicted of
three violent crimes or three serious drug offenses, or any
combination thereof totaling three, arising from separate
incidences, violates the provisions of said paragraph (a),
(c) or (h) of said [§] 10 shall be punished by imprisonment
in the state prison for not less than [fifteen] years nor
more than [twenty] years." (Emphasis added.)

G. L. c. 269, § 10G (a)-(c).12

The question of interpretation before us relates to the

meaning of the phrase, "having been previously convicted of

three [qualifying crimes] arising from separate incidences,"

that appears in § 10G (c), and more specifically the meaning of

App. Ct. 8, 12 (2011); Commonwealth v. Ware, 75 Mass. App. Ct.
220, 222 (2009).
12
Under § 10G (d), any sentence imposed under the statute
shall not be reduced to less than the minimum mandatory sentence
or suspended, and the defendant is not eligible for probation or
parole until he has served the minimum term.
 15

the phrase, "arising from separate incidences."13 To answer that

question, we consider first the meaning of the actual language

used by the Legislature. See Commonwealth v. Robertson, 467

Mass. 371, 376 (2014). However, "we also seek guidance from

[the statute's] legislative history, . . . the language and

construction of related statutes, . . . and the law of other

jurisdictions" (citations omitted). Commonwealth v. Welch, 444

Mass. 80, 85 (2005).

The word "incidences" or "incidence" is not defined in

§ 10G. Dictionary definitions of "incidence" include "an act or

the fact or manner of falling upon or affecting: occurrence,"

the "rate, range, or amount of occurrence or influence,"

Webster's Third New International Dictionary 1142 (1993), and

"[t]he frequency with which something occurs, such as crime" or

"the number of times that something happens," Black's Law

Dictionary 879 (10th ed. 2014). The word thus appears to focus

more on the measurement of something's frequency of occurrence

than on the definition of the "something" itself. In that

sense, it is distinct from the word "incidents," or "incident."14

13
At issue in this case are the defendant's convictions
under § 10G (c), but our analysis applies with equal force to
§ 10G (b).
14
The word "incident" is defined as "a separate unit of
experience: happening," Webster's Third New International
Dictionary 1142 (1993), and "[a] discrete occurrence or
 16

But the fact that the Legislature chose not to use the word

"incidents" provides little direct guidance as to what the

Legislature meant by selecting "incidences." Nor is the

statute's legislative history illuminating on this point.

Section 10G was enacted in 1998 as one section of an omnibus

piece of legislation entitled, "An Act relative to gun control

in the Commonwealth," that was designed to provide a stricter

gun control regime by adding a wide variety of new statutory

provisions.15 It appears that from the earliest drafts, the

phrase "arising from separate incidences" was included in what

is now § 10G, and nothing in these drafts or any other

legislative materials available for review offers any

explanation or guidance as to the reason for this choice of

happening; an event, esp. one that is unusual, important, or
violent," Black's Law Dictionary 879 (10th ed. 2014).
15
Section 10G was inserted by St. 1998, c. 180, which,
among other things, enacted into Massachusetts law the Federal
assault weapons ban; created negligence liability for gun owners
who improperly stored guns; created a new category of large
capacity weapons, see G. L. c. 140, § 121, and G. L. c. 269,
§ 10F; created a new licensing structure for all guns, see G. L.
c. 140 § 123; established a firearms record-keeping trust fund;
prohibited the possession or sale of "sawed-off" shotguns, see
G. L. c. 269, § 10 (c); required that gun dealers operate out of
a location separate from their residence; prohibited mail order
gun sales within the State, G. L. c. 140, § 123; established
penalties for possession of a weapon while intoxicated, G. L.
c. 269, § 10H; and required all new gun license applicants to
pass a gun safety course, G. L. c. 140, § 131P.
 17

words, or the meaning that the Legislature ascribed to them.16

However, three separate considerations lead us to conclude that

the phrase "arising from separate incidences" is best understood

to mean that each previous conviction serving as a predicate

offense under § 10G must result from a separate prosecution, and

not simply from a separate criminal event. The three

considerations are the Legislature's departure from the language

used in the Federal ACCA, the analysis of cases from other

jurisdictions, and the rule of lenity.

The Federal ACCA provides:

"In the case of a person who violates [18 U.S.C.
§922(g)] and has three previous convictions . . . for a
violent felony or a serious drug offense, or both,
committed on occasions different from one another, such
person shall be fined under this title and imprisoned not
less than fifteen years, and, notwithstanding any other
provision of law, the court shall not suspend the sentence
of, or grant a probationary sentence to, such person with
respect to the conviction under [§] 922(g)" (emphasis
supplied).

18 U.S.C. § 924(e)(1). The language "committed on occasions

different from one another" was added to the Federal ACCA by

16
The legislative record of the omnibus bill's enactment
includes two recommendations from the Governor's legislative
director to his legislative office and a House of
Representatives "Executive Bill Summary" memorandum, both of
which provide summaries of the bill by section. With respect to
§ 10G, the documents state that if a defendant has "three
previous felony convictions the punishment shall be imprisonment
in a [S]tate prison for not less than [fifteen] nor more than
[twenty] years," but do not address the timing of those
convictions in relation to each other, or the statutory phrase
"arising from separate incidences."
 18

amendment in 1988. See Pub. L. No. 100-690, 102 Stat. 4181,

§ 7056 (1988). In United States v. Letterlough, 63 F.3d 332,

335 (4th Cir.), cert. denied, 516 U.S. 955 (1995), the United

States Court of Appeals for the Fourth Circuit articulated the

test that it noted was used by the courts of almost every

Federal Circuit for determining whether the Federal ACCA applies

to a defendant's prior crimes: "Convictions occur on occasions

different from one another 'if each of the prior convictions

arose out of a 'separate and distinct criminal episode"'"

(emphasis in original). Id., quoting United States v. Hudspeth,

42 F.3d 1015, 1019 (7th Cir. 1994), cert. denied, 515 U.S. 1105

(1995).

The Legislature enacted the Massachusetts ACCA ten years

after the Federal ACCA was amended to include the phrase

"committed on occasions different from one another" and three

years after the Letterlough decision. The Massachusetts ACCA

adopts the definitional language of the Federal ACCA.17 See

Commonwealth v. Colon, 81 Mass. App. Ct. 8, 12 (2011). See also

Commonwealth v. Eberhart, 461 Mass. 809, 815 (2012). However,

we disagree with the Commonwealth that the Massachusetts statute

17
A comparison of the definitions of "violent crime" and
"serious drug offense" in the Massachusetts ACCA with the
language used by Congress to define "violent felony" and
"serious drug offense" in the Federal ACCA indicates that the
two definitions are virtually identical in substance; the
inference that the Legislature had the Federal ACCA in mind when
enacting the Massachusetts ACCA appears inescapable.
 19

"largely replicates," Colon, supra, the entire structure of its

Federal counterpart. In fact, § 10G departs from the Federal

ACCA precisely in relation to the language in contention here,

namely, the description of what makes a prior violent crime or

serious drug offense qualify as a predicate offense. That is,

§ 10G does not incorporate the Federal ACCA language that the

crimes be "committed on occasions different from one another,"

18 U.S.C. § 924(e)(1), to qualify, but rather requires that the

predicate crimes be ones "arising from separate incidences."

Considering the Legislature's obvious awareness of the language

used in the Federal ACCA (witness the § 10G definitions) and the

Legislature's presumptive knowledge of the nearly uniform

judicial interpretation of the phrase "committed on occasions

different from one another,"18 its decision to use different

words to refer to qualifying offenses suggests that the

Legislature affirmatively intended to enact a sentence

enhancement scheme that did not march in lock step with the

Federal ACCA. Differences in language between a State statute

and a previously enacted, analogous Federal statute "reflect a

conscious decision by the Legislature to deviate from the

standard embodied in the Federal statute." Globe Newspaper Co.

18
Cf. Commonwealth v. Callahan, 440 Mass. 436, 441 (2003)
(we "presume that the Legislature is aware of the prior state of
the law as explicated by the decisions of this court" [citation
omitted]).
 20

v. Boston Retirement Bd., 388 Mass. 427, 433 (1983). See

Commonwealth v. McGhee, 472 Mass. 405, 413 n.8 (2015). We

therefore reject the Commonwealth's argument, adopted by the

dissent, that in § 10G the Legislature simply employed different

words to convey the exact same meaning as the Federal ACCA.

That the Legislature had a sentencing scheme different from

the Federal ACCA in mind when it enacted § 10G is made even more

clear when the structures of the Massachusetts and Federal

statutes are compared. The Federal ACCA imposes only one level

of enhancement that comes into play after three qualifying

offenses; in contrast, § 10G provides for three separate levels

of enhancement, each with an increasing mandatory minimum

sentence depending on the number of predicate offenses

committed, up to a maximum of three -- i.e., a graduated

approach to enhanced penalties. Again, given its familiarity

with the Federal statute, the Legislature's rejection of the

single, "three strikes, you're out" model of 18 U.S.C. § 924(e)

and the adoption of a graduated approach is significant.

In terms of structure, the Massachusetts ACCA shares less

in common with the Federal ACCA than it does with a large number

of armed career criminal sentencing statutes with graduated

penalty provisions that have been enacted by other States. The

language of these statutes varies, but a majority of State

appellate courts have interpreted statutory provisions providing
 21

progressively longer sentences for crimes a defendant commits

after having been previously convicted of one, two, or three

qualifying offenses to require that the prior convictions be

sequential -- i.e., that the first conviction (and imposition of

sentence) occur before the commission of the second predicate

crime, and the second conviction and sentence occur before the

commission of the third crime. See, e.g., Commonwealth v.

Shiffler, 583 Pa. 478, 480, 492-495 (2005). See also Hall v.

State, 473 A.2d 352, 356-357 (Del. 1984); State v. Lohrbach, 217

Kan. 588, 591 (1975); State v. Ellis, 214 Neb. 172, 174-176

(1983).19 See generally Annot., Chronological or Procedural

Sequence of Former Convictions as Affecting Enhancement of

Penalty under Habitual Offender Statutes, 7 A.L.R. 5th 263,

§§ 2(a), 7(d) (1992 & Supp. 2015).20

19
But see, e.g., Watson v. State, 392 So. 2d 1274, 1279
(Ala. Crim. App. 1980) (no requirement that prior convictions be
sequential); Knight v. State, 277 Ark. 213, 215-216 (1982)
(same); People v. District Court in & for the County of Larimer,
643 P.2d 37, 38-39 (Colo. 1982) (same); Stradt v. State, 608
N.W.2d 28, 29-30 (Iowa 2000) (same).
20
It bears noting that despite the actual language and
judicial interpretation of the Federal ACCA -- which, as we have
discussed, focuses on whether the prior convictions involved
distinct criminal episodes -- the United States Sentencing
Commission has adopted guidelines providing that simultaneous
convictions, i.e., convictions charged in the same charging
instrument or for which sentences are entered on the same day,
should qualify only as a single predicate offense under the
Federal ACCA, unless the offenses were separated by intervening
arrests. See Federal Sentencing Guidelines Manual § 4A1.2(a)(2)
(updated Nov. 2015).
 22

The rationale underlying the majority view that graduated

sentence enhancement statutes should be interpreted to require

sequential prosecutions and convictions of the predicate crimes

is well expressed by the Pennsylvania Supreme Court in Shiffler,

583 Pa. at 494:

"'[T]he point of sentence enhancement is to punish
more severely offenders who have persevered in criminal
activity despite the theoretically beneficial effects of
penal discipline.' . . . Particularly salient here is the
implicit link between enhanced punishment and behavioral
reform, and the notion that the former should
correspondingly increase along with a defendant's foregone
opportunities for the latter. Any other conception would
ignore the rationale underlying the recidivist philosophy,
i.e., that the most culpable defendant is 'one, who after
being reproved, "still hardeneth his neck."' . . . The
generally recognized purpose of such graduated sentencing
laws is to punish offenses more severely when the defendant
has exhibited an unwillingness to reform his miscreant ways
and to conform his life according to the law" (emphasis in
original; citations omitted).21

Decisions in other States reflect similar reasoning. See, e.g.,

State v. Ledbetter, 240 Conn. 317, 328-330, 332 (1997) ("We

agree with the defendant that the legislative purpose of [the

State's armed career criminal statute] is fulfilled only by

requiring a sequence of offense, conviction and punishment, thus

allowing a felon the opportunity to reform prior to being

labeled a persistent felony offender"); Buckingham v. State, 482

21
Accord Commonwealth v. McClintic, 589 Pa. 465, 483 (2006)
("Following the recidivist logic, each strike that serves as a
predicate offense must be followed by sentencing and, by
necessary implication, an opportunity for reform, before the
offender commits the next strike").
 23

A.2d 327, 330-331 (Del. 1984) (punishment enhanced only for

individuals who failed to reform after separate encounters with

criminal justice system); Lohrbach, 217 Kan. at 591 ("The basic

philosophy underlying recidivist statutes might be expressed in

this fashion: where the punishment imposed against an offender

for violating the law has failed to deter him from further

infractions, a harsher and more severe penalty is justified, the

idea being, hopefully, that the greater punishment may serve as

an object lesson and cause him to accomplish his reformation,

where the lesser penalty had failed in that respect").22

As noted, the available legislative history of the

Massachusetts ACCA does not reveal the Legislature's specific

rationale or purpose for eschewing the Federal ACCA's approach

and establishing a graduated penalty structure tied to the

number of a defendant's previous convictions of predicate

offenses. But the Legislature having done so, we are persuaded

that the most logical interpretation of § 10G (a)-(c) is one

22
See also State v. Ellis, 214 Neb. 172, 175-176 (1983)
("We believe that the purpose of enacting the habitual criminal
statute is to serve as a warning to previous offenders that if
they do not reform their ways they may be imprisoned for a
considerable period of time, regardless of the penalty for the
specific crime charged. . . . We believe we should join the
majority of jurisdictions in their interpretation of the
habitual criminal statute, and now, therefore, declare that in
order to warrant the enhancement of the penalty under the
Nebraska habitual criminal statute . . . the prior convictions,
except the first conviction, must be for offenses committed
after each preceding conviction, and all such prior convictions
must precede the commission of the principal offense").
 24

that reflects and implements the principle that penal discipline

can have (or should have) a reforming influence on an offender,

with enhanced consequences if prior convictions and sentences do

not have such an effect.23 As a consequence, the most logical

and appropriate interpretation of § 10G (c) is that its sentence

enhancement of a mandatory minimum of fifteen years applies only

when a defendant's previous convictions of three qualifying

crimes "arising from separate incidences" were the results of

separate, sequential prosecutions.

Finally, insofar as the meaning of "arising from separate

incidences" in § 10G (c) is ambiguous,24 the rule of lenity

supports the interpretation we have adopted here:

23
This rationale reflects what the Pennsylvania Supreme
Court terms a "recidivist philosophy." See Commonwealth v.
Shiffler, 583 Pa. 478, 494 (2005). The dissent contends that
there is little to no support for our conclusion that a
recidivist philosophy underlies the Legislature's enactment of
§ 10G. Post at . Certainly the scant legislative history
relating to § 10G contains no evidence that the Legislature used
that term. But the Legislature's express adoption of a
graduated penalty structure in § 10G, increasing the mandatory
minimum sentence as the defendant acquires more "strikes," and
the decisions of other State courts construing habitual offender
statutes akin to § 10G in a manner consistent with the
substantive tenets of a recidivist philosophy work together to
support our interpretation. See Commonwealth v. Welch, 444
Mass. 80, 85 (2005) (court may use language and construction of
related statutes and law of other jurisdictions to determine
legislative intent).
24
The dissent states that § 10G is not ambiguous and
asserts that the statute's plain meaning is that "previous
convictions are convictions occurring prior to the ACCA
violation for offenses 'arising from separate' criminal
 25

"Under the rule of lenity, 'if we find that the
statute is ambiguous or are unable to ascertain the intent
of the Legislature, the defendant is entitled to the
benefit of any rational doubt.' Commonwealth v.
Constantino, 443 Mass. 521, 524 (2005). 'This principle
applies to sentencing as well as substantive provisions.'
Commonwealth v. Gagnon, 387 Mass. 567, 569 (1982)."

Commonwealth v. Richardson, 469 Mass. 248, 254 (2014). See

Commonwealth v. Hamilton, 459 Mass. 422, 436-437 (2011). The

Commonwealth posits that § 10G's requirement that qualifying

convictions "aris[e] from separate incidences" is satisfied so

long as the defendant's conduct underlying the convictions

involved distinct criminal offenses even if all the convictions

were the result of a single prosecution. This interpretation is

not compelled by the language and particularly the structure of

§ 10G.25 Accordingly, in this case -- where the defendant's

previous drug offense convictions were the result of counts that

incidents." Post at .However, this construction of the
statute conflates the terms "incident" and "incidence," which,
as discussed previously, have distinct definitions. See note
14, supra. Where the Legislature used the term "incidences" in
§ 10G, we will interpret the statute with that word in mind, and
will not substitute for it a word that means something else.
25
It is clear that the defendant could not have been
sentenced as an armed career criminal under § 10G during the
prosecution of the crimes committed in 2006 because those
convictions were simultaneous –- i.e., none of the convictions
could be considered a previous conviction in relation to any of
the others. Allowing the defendant to be sentenced as a third-
time repeat offender under § 10G (c) here, despite the fact that
he could not have, at any previous time, been charged as even a
first-time repeat offender under § 10G (a), is a result that we
do not believe the Legislature intended. Cf. Shiffler, 583 Pa.
at 492.
 26

were brought at the same time, combined in a single set of

charges, prosecuted and handled as a single criminal

prosecution, and resolved by guilty pleas in a single plea

proceeding -- the convictions represented a single "incidence"

for purposes of § 10G. The defendant, therefore, could not be

prosecuted or sentenced under § 10G (c) (or § 10G [b]), but

could be prosecuted and sentenced pursuant to § 10G (a).

3. Conclusion. The motion judge properly denied the

defendant's motions to suppress evidence, and the order denying

the motions to suppress is affirmed. With respect to the

defendant's appeal from his convictions as an armed career

criminal pursuant to G. L. c. 269, § 10G (c), those convictions

are vacated, and the case is remanded to the Superior Court for

further proceedings consistent with this opinion.

So ordered.
 CORDY, J. (dissenting in part, with whom Spina, J., joins).

I agree that the defendant's motions to suppress were properly

denied. I disagree that the Massachusetts armed career criminal

act, G. L. c. 269, § 10G (ACCA), is ambiguous, and would adopt

what I perceive to be the plain meaning of its words: previous

convictions are convictions occurring prior to the ACCA

violation for offenses "arising from separate" criminal

incidents. Crimes arising from separate incidents are crimes

committed on different occasions as contrasted with multiple

crimes arising out of a single occasion or criminal episode.

The issue is purely one of legislative intent at the time

of enactment, and, absent any evidence to the contrary, I would

not read into the statute a "recidivist philosophy," rather than

an intent to ensure public safety by significantly increasing

the penalties for persons who commit crimes with firearms after

having been convicted of multiple serious felonies.

In my view, the Massachusetts statute should be interpreted

as the Federal ACCA statute has been by virtually every Federal

Circuit and District Court to undertake the task.1 18 U.S.C.

§ 924(e) (2006) (offenses "committed on occasions different from

one another"). So long as the prior offenses of which the

1
See, e.g., United States v. Elliott, 703 F.3d 378, 383
(7th Cir. 2012), cert. denied, 133 S. Ct. 2359 (2013), and
United States v. Letterlough, 63 F.3d 332, 335 (4th Cir.), cert.
denied, 516 U.S. 955 (1995), and the numerous cases cited
therein.
 2

defendant has been convicted arise out of different criminal

episodes (whether termed different occasions, occurrences,

incidents, or incidences), they should qualify as separate

previous convictions for purposes of the Massachusetts ACCA

statute.

The court's interpretation would essentially incorporate

all crimes, no matter how separate in time, victim, or nature,

into a single conviction (for ACCA purposes) if they were

eventually resolved by guilty plea or trial in the same

prosecution. For example, a person who commits a string of

armed robberies in Suffolk County over a period of months and

who is eventually apprehended, linked to, charged with, and

convicted of all of the robberies, in a combined prosecution,

would have only "one" prior felony conviction for purposes of

the Massachusetts ACCA statute -- no matter how many robberies

he is convicted of committing.

Further, the court suggests that prior convictions must be

sequential. In other words, the first conviction must occur

before the second predicate crime and its prosecution and

conviction, and the second conviction must occur before the

commission and prosecution of the third crime, and so on --

apparently, so that the recidivist felon has multiple

opportunities to correct his criminal behavior before facing far

greater punishment when he once again commits a serious felony,
 3

this time with a firearm. Hence, by way of example, if the

armed robber is prosecuted in Suffolk County, and, subsequent to

his conviction, it is determined that before his conviction he

had committed a series of armed robberies in Hampden County and

is, accordingly, now prosecuted and convicted of those armed

robberies, he would still only have one prior conviction under

the Massachusetts ACCA statute when and if he commits his next

armed felony. This could not have been what the Legislature

intended.2

The fact that some State courts have interpreted their own

armed career criminal statutes (variously worded) differently

(and as this court now would), based on their view of what their

Legislatures intended to punish, is not terribly relevant or

revealing.3 Other State courts have concluded the opposite.4

2
The court's interpretation would also result in the
following: An individual is arrested for a serious drug offense
and is released on personal recognizance. He is then arrested
for another serious drug offense and is released on bail. He is
finally arrested for an armed robbery and is held without bail.
All three separate crimes (for which he has been separately
arrested and charged) are eventually resolved by guilty pleas
and sentencing in a single plea and sentencing proceeding.
Result -- one prior conviction only.
3
For example, the court cites a Nebraska case, State v.
Ellis, 214 Neb. 172, 175 (1983), in support of its proposition
that habitual offender statutes should be interpreted in a
manner that allows felons the opportunity to "reform their
ways." The Nebraska Supreme Court was, of course, interpreting
the meaning and legislative intent behind its own statute, which
provided that a habitual criminal is one who has previously
"been twice convicted of crime, sentenced and committed to
 4

There is no consensus as to how such statutes, no matter how

differently worded or intended, must be interpreted.

I would not infuse our analysis with hindsight doubts about

whether the statute has served as an effective deterrent, or

whether it might seemingly prove unduly harsh in some

circumstances. That is the Legislature's responsibility, not

ours. And I would not use the modest facts in this case, in

which the defendant's prior convictions were for five drug

sales, each occurring on a different day during a three-week

period, as an excuse to broadly transplant a new policy that has

no traceable origin in legislative history, onto a statute

plainly intended to protect the public from felons with multiple

felony convictions who use firearms in committing new crimes.

prison." Id. at 172-173. See Neb. Rev. Stat. § 29-2221. The
court, in a four-to-three decision, concluded that where the
defendant was convicted of two crimes (robbery and the use of a
firearm in the course of the robbery), occurring on the same
day, and for which he was sentenced on the same day, he had only
one prior conviction and sentence under its statute. Ellis,
supra at 172-173, 175-176. The court went on to more broadly
endorse the "recidivist philosophy" behind its habitual offender
statute, see id. at 175, over a vigorous dissent noting that the
court had "chosen to substitute doubtful sociological
assumptions (without legislative history to show that the
Legislature shared its view) for the logical construction of
[the] statute." Id. at 177 (White, J., dissenting).
4
See, e.g., Watson v. State, 392 So. 2d 1274, 1279 (Ala.
Crim. App. 1980); Linn v. State, 658 P.2d 150, 152 (Alaska Ct.
App. 1983); Knight v. State, 277 Ark. 213, 215-216
(1982); Stradt v. State, 608 N.W.2d 28, 29-30 (Iowa 2000);
Rushing v. State, 461 So. 2d 710, 713 (Miss. 1984).