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SJC-12404
COMMONWEALTH vs. BERNIE RUIZ.
Suffolk. May 7, 2018. - October 11, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Habitual Offender. Practice, Criminal, Appeal by Commonwealth,
Interlocutory appeal.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on January 10, 2017.
The case was heard by Lenk, J.
David L. Sheppard-Brick, Assistant District Attorney, for
the Commonwealth.
Patrick A. Michaud for the respondent.
BUDD, J. Once again we have occasion to interpret G. L.
c. 279, § 25 (a) (§ 25 [a]), which requires that a "habitual
criminal" -- a defendant who has been convicted of a felony and
has two prior convictions resulting in State or Federal prison
sentences of three years or more -- be sentenced to the maximum
term provided by law on the underlying conviction. We conclude
2
that, although the predicate convictions must arise from
separate incidents or episodes, Commonwealth v. Garvey, 477
Mass. 59, 66 (2017), the offenses need not be separately
prosecuted. We further conclude that Mass. R. Crim. P.
15 (a) (1), as appearing in 474 Mass. 1501 (2016) (rule 15 [a]
[1]), and G. L. c. 278, § 28E (§ 28E), grant the Commonwealth a
right to appeal from the dismissal of the sentence enhancement
portion of an indictment, and thus we overrule in part
Commonwealth v. Pelletier, 449 Mass. 392, 395-396 (2007).
Background. In March, 2016, a grand jury returned eleven
indictments against the defendant for a variety of charges,
including armed assault with intent to murder, in connection
with an incident alleged to have occurred on February 17, 2016.1
All but two of these indictments carried sentencing enhancements
under § 25 (a).
1 The details regarding the basis of the defendant's
indictments are contained in grand jury testimony filed and
maintained under seal pursuant to G. L. c. 268, § 13D (e). The
defendant was charged on two indictments of armed assault with
intent to murder, G. L. c. 265, § 18 (b); three indictments of
assault by means of a dangerous weapon, G. L. c. 265, § 15B; one
indictment of unlawful possession of a firearm, G. L. c. 269,
§ 10 (a); one indictment of unlawful possession of a loaded
firearm, sawed off shotgun, or machine gun, G. L. c. 269, § 10
(n); one indictment of unlawful possession of ammunition without
a firearm identification card, G. L. c. 269, § 10 (h); one
indictment of discharging a firearm within 500 feet of a
dwelling, G. L. c. 269, § 12E; one indictment of possession of a
firearm during the commission of a felony, G. L. c. 265, § 18B;
and one indictment of malicious damage to a motor vehicle, G. L.
c. 266, § 28 (a).
3
The predicate convictions supporting the habitual criminal
portions of the indictments were the result of guilty pleas
tendered by the defendant in 2008. The defendant pleaded guilty
to separate charges of assault and battery by means of a
dangerous weapon arising from two separate criminal episodes,
which occurred in August and September of 2006.
In 2008, the defendant was indicted for both offenses by
the same grand jury and pleaded guilty to both charges in one
proceeding. The defendant was sentenced to a term of from four
to six years in State prison on each charge of assault and
battery by means of a dangerous weapon, each sentence set to run
concurrently.2
Because the judge below concluded that the defendant's
predicate convictions represented a single "incident" under
§ 25 (a), he allowed the defendant's motion to dismiss the
§ 25 (a) sentence enhancement charges associated with the March,
2016, indictments.3 The Commonwealth filed a timely notice of
2 The defendant also pleaded guilty to other charges during
the aforementioned 2008 proceeding that are not relevant to our
analysis in this case.
3 The defendant also was indicted in October, 2014, for a
number of other criminal offenses. Several of the 2014 and 2016
charges carried sentence enhancements pursuant to the armed
career criminal act, G. L. c. 269, § 10G (c). The motion judge
granted the defendant's motion to dismiss these sentence
enhancement charges; the Commonwealth did not appeal from those
dismissals. See Commonwealth v. Resende, 474 Mass. 455, 470
4
appeal in the Superior Court, but the Superior Court clerk's
office would not compile a record for appeal under rule 15 (a)
(1) in light of our decision in Pelletier, 449 Mass. at 396, in
which we held that the Commonwealth may not take an
interlocutory appeal from the dismissal of only the sentence
enhancement portion of a complaint. Thereafter, the
Commonwealth filed a petition for relief pursuant to G. L.
c. 211, § 3. A single justice of this court denied the
Commonwealth's petition, and the Commonwealth appealed to the
full court.
Discussion. 1. Applicability of G. L. c. 279, § 25 (a).
In reviewing the single justice's determination to deny the
Commonwealth's petition brought under G. L. c. 211, § 3, this
court looks to whether "the single justice abused his or her
discretion or made a clear error of law." Rogan v.
Commonwealth, 415 Mass. 376, 378 (1993). Here, the Commonwealth
asserts an error of law. Matter of a Grand Jury Subpoena, 447
Mass. 88, 90 (2006). Because the question for review is a
matter of statutory interpretation, we review it de novo.
Garvey, 477 Mass. at 61.
General Laws c. 279, § 25 (a), provides:
(2016). The Commonwealth exercised its authority to enter a
nolle prosequi on the 2014 charges in May, 2017.
5
"Whoever is convicted of a felony and has been previously
twice convicted and sentenced to [S]tate prison or [S]tate
correctional facility or a [F]ederal corrections facility
for a term not less than [three] years . . . shall be
considered a habitual criminal and shall be punished . . .
for such felony for the maximum term provided by law."
The statute requires that a defendant be sentenced to the
maximum sentence if found guilty of the underlying felony
provided that he or she has at least two qualifying prior
convictions; however, § 25 (a) does not indicate whether those
predicate convictions must have stemmed from separate
prosecutions and sentencings.
The defendant argues that the judge properly dismissed the
sentence enhancements because, as he pleaded guilty to a set of
charges that were combined and prosecuted together, the
convictions cannot be counted separately for the purposes of
§ 25 (a). Conversely, the Commonwealth contends that § 25 (a)
does not require that the predicate convictions arise from
charges separately prosecuted. See Commonwealth v. Hall, 397
Mass. 466, 468-469 (1986) (defendant may be convicted under
statute where two predicate convictions arise out of unrelated
incidents disposed of on same date with identical concurrent
sentences).
As the statute is "simply silent" on this matter, "we
consider that section in the context of the over-all objective
the Legislature sought to accomplish." National Lumber Co. v.
6
LeFrancois Constr. Corp., 430 Mass. 663, 667 (2000). Our review
of § 25 (a)'s historical development supports the conclusion
that the legislative objective of § 25 (a) is to punish all
offenders who have prior convictions stemming from two or more
separate and distinct criminal episodes, and that the
Legislature specifically rejected the requirement of separate
and sequential prosecutions for predicate offenses.
The "Legislature developed a series of incarnations of
repeat offender statutes, beginning in 1818, before enacting
what is now § 25 (a)." Garvey, 477 Mass. at 62.4 In
Commonwealth v. Phillips, 11 Pick. 28, 34 (1831), this court
concluded that, under the 1818 incarnation of the statute (which
was also silent as to whether charges or indictments must have
been separately prosecuted to count as individual convictions),
two predicate convictions associated with two prior distinct
criminal episodes that were brought and tried during the same
term of the same court were "two convictions, within the meaning
of the statute." See Ex Parte Seymour, 14 Pick. 40, 40-41
(1833) (period of liberty between predicate convictions not
required).
4 See St. 1817, c. 176, §§ 5-6; St. 1827, c. 118, §§ 19-20;
St. 1832, c. 73, § 1; St. 1833, c. 85, §§ 1-2; St. 1836, c. 4,
§§ 17, 20-22; St. 1843, c. 80; St. 1853, c. 375 (repealing
statute); St. 1887, c. 435, § 1; St. 2012, c. 192, § 47.
7
In the following year, the Legislature amended the statute,
superseding this court's opinion in Phillips by expressly
requiring that there should be two separate convictions and
sentences, and two distinct discharges from prison, to bring a
defendant within the scope of the statute. See St. 1832, c. 73,
§ 1.5 See also St. 1833, c. 85, §§ 1-2 (reenacting statute with
substantiality of 1832 requirements);6 Phillips v. Commonwealth,
3 Met. 588, 591 (1842) (1831 interpretation "probably gave rise
to the statute passed at the next session of the legislature");
Commonwealth v. Mott, 21 Pick. 492, 500 (1839) ("One great
object of the [1832] statute undoubtedly was, to declare that by
two convictions, should thereafter be understood, sentences and
commitments at two distinct times and discharges therefrom . . .
instead of two sentences at the same term of a court"); Ex Parte
The 1832 statute specifically required proof that a
5
convict subject to the statute "has at two several times before
been sentenced by competent authority to [prison]." (emphasis
added). St. 1832, c. 73, § 1. At the time, "several" was
defined as "[a] state of separation or partition. A several
agreement or covenant, is one entered into by two or more
persons separately, each binding himself for the whole; a
several action is one in which two or more persons are
separately charged; a several inheritance, is one conveyed so as
to descend, or come to two persons separately by moieties.
Several is usually opposed to joint." 2 Bouvier's Law
Dictionary 394 (1st. ed. 1839).
The 1833 statute was reenacted with the express
6
requirement of two distinct discharges from prison for predicate
offenses, but without the express requirement of two several
convictions contained in the 1832 statute. See St. 1832, c. 73,
§ 1; St. 1833, c. 85, §§ 1-2.
8
Stevens, 14 Pick. 94, 96 (1833) (explaining intent and purpose
of 1832 statute); Ex Parte Seymour, 14 Pick. at 41 note (noting
that statutory revision added requirement that charges be
sequential).
In 1836, however, the Legislature again amended the repeat
offender statute, eliminating the requirements that had been
added in 1832 requiring separate convictions and a period of
liberty between the imprisonment for one offense and the
commission of the next. St. 1836, c. 4, §§ 17, 20.7 Although
the Legislature repealed the repeat offender statute in 1853,
see St. 1853, c. 375, it enacted a version substantially similar
to the earliest version of the statute in 1887, again omitting
the 1832 requirements that predicate offenses occur as a result
of separate convictions and occur with a period of liberty
between them. St. 1887, c. 435, § 1. We have concluded that
the Legislature's modifications to the statutory requirements of
what is now § 25 (a) in light of our decisions are highly
7 Although the 1833 statute appears to have eliminated the
express requirement of separate convictions and sentences for
predicate offenses, separate convictions would have still been
implicit in the requirement that there be two discharges from
prison. The express requirement of separate convictions was
nonetheless included in the codification of the statute in 1835.
See St. 1833, c. 85, §§ 1-2; R.S. c. 133, § 13; R.S. c. 144,
§ 34. In any case, the 1836 statute expressly repealed the
requirement of separate convictions and two discharges from
prison that were included in the revised statutes. See
St. 1836, c. 4, §§ 17, 20.
9
germane to determining its intent. See Commonwealth v.
Richardson, 175 Mass. 202, 207 (1900).
The Legislature's decision to enact a statute expressly
requiring separate prosecutions of predicate offenses with a
period of liberty between those prosecutions, followed by the
repeal and replacement of that statute with a version that does
not contain those requirements, "reflect[s] a conscious decision
by the Legislature to deviate from the standard embodied in the
[previous] statute." Commonwealth v. Resende, 474 Mass. 455,
466 (2016), quoting Globe Newspaper Co. v. Boston Retirement
Bd., 388 Mass. 427, 433 (1983). Thus, here the Legislature has
rejected the theory that more severe punishment is only
appropriate when there have been two separate and distinct
encounters with the criminal justice system that have failed to
result in the theoretically beneficial effects of penal
discipline. See Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S.
519, 533-535 (2013) (examining statutory history to determine
statute's meaning).
In 2012, the Legislature reenacted § 25 (a) as part of
criminal justice reform legislation, also inserting new
subsections removing the possibility of parole for "habitual
10
offenders"8 of particular offenses enumerated in the statute.
G. L. c. 279, § 25 (b)-(d), inserted by St. 2012, c. 192, § 47.
Under those newly inserted provisions, unlike in § 25 (a), the
Legislature expressly required that predicate offenses have been
"separately brought and tried." See G. L. c. 279, § 25 (b)
(§ 25 [b]). That the Legislature reenacted the same statute in
2012 without including the requirement that the predicate
offenses be separately brought and tried under § 25 (a), yet
included that requirement under § 25 (b), provides further
support that the Legislature did not intend to modify prior
assumptions about this statute to include this requirement.9 See
People v. Braswell, 103 Cal. App. 399, 407-408 (1930) (where
Legislature required predicate convictions to be "separately
8 After the 2012 amendments, certain individuals statutorily
identified as "habitual criminals" are subject to the provisions
of subsection (a) and certain individuals statutorily identified
as "habitual offenders" are subject to the provisions of
subsection (b). See G. L. c. 289, § 25, as appearing in
St. 2012, c. 192, § 47.
9 In Commonwealth v. Garvey, 477 Mass. 59, 65-66 (2017), we
rejected the Commonwealth's argument that the Legislature's
decision to include an express "separate and distinct incident"
element in G. L. c. 279, § 25 (b), implied its exclusion in
G. L. c. 279, § 25 (a) (§ 25 [a]). However, our conclusions
both here and in Garvey contemplate that by reenacting § 25 (a)
without making any significant modifications, the Legislature
did not intend to "negate this court's . . . prior assumptions
about § 25 (a)." Id. at 66. Based on the statutory history and
our case law, the prior assumption here is that the Legislature
did not require predicate offenses to be separately brought and
tried.
11
brought and tried" for one sentence enhancement scheme but not
another, "legislature may have considered . . . prior
convictions [in latter scheme] to have been sufficient to have
constituted a man a[] habitual criminal, whether or not they
were upon charges separately brought and tried"). See also
Commonwealth v. Wimer, 480 Mass. 1, 5 (2018) (interpreting
statutory language requiring sequential convictions).
The defendant suggests that we should construe § 25 (a)
consistently with our interpretation of G. L. c. 269, § 10G
(§ 10G), the armed career criminal act. That statute also
requires sentence enhancements under particular conditions, and
is similarly silent as to whether the prior convictions must
have stemmed from separate prosecutions and sentences.10 In
10 General Laws c. 269, § 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 [S]tate
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 [S]tate 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
12
Resende, 474 Mass. at 469, we concluded that § 10G requires
separate and sequential prosecutions in order to count prior
convictions individually; however, § 25 (a) and § 10G stand on
very different footing.
Section 10G, the Massachusetts analog to the Federal armed
career criminal act, 18 U.S.C. § 924(e), was enacted relatively
recently (in 1998), and its legislative roots are not nearly as
extensive as those of § 25 (a). See St. 1998, c. 180, § 71,
inserting G. L. c. 269, § 10G. As we noted in Resende, the
legislative history of § 10G is not particularly helpful on the
issue whether the statute requires each previous conviction to
be separately prosecuted to count as a predicate offense. Id.
at 463-464. Instead we looked to "the Legislature's departure
from the language used in the Federal [statute],[11] the analysis
of cases from other jurisdictions, and the rule of lenity" to
determine that § 10G requires separate and sequential
prosecutions of predicate offenses. Id. at 464.
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 [S]tate prison for not less than [fifteen] years nor
more than [twenty] years."
11We noted that the Legislature chose to depart from
language in the Federal statute in its description of what makes
a violent crime a predicate offense. Resende, 474 Mass. at 464-
465 (comparing "incidences" in Massachusetts statute with
"committed on occasions different from one another" in Federal
statute).
13
In contrast, the purpose of § 25 (a), as made clear from
the statutory history, is to punish all repeat offenders, and to
require prior convictions merely as proof of guilt of prior
crimes rather than proof that a defendant's prior penal
treatment has not been effective at reforming a criminal
offender.12 See Richardson, 175 Mass. at 207 (describing
statute's purpose); Ex Parte Seymour, 14 Pick. at 41-42 (same).
See also Mott, 21 Pick. at 498 (purpose of period of liberty in
1833 statute was to ensure sentence enhancement occurs only
"after the salutatory and reforming influence of two separate
commitments to the penitentiary, and two discharges therefrom by
pardon or execution of the whole sentence, had been tried in
vain").
The Commonwealth's sentence enhancement statutes vary in
language, structure, and intent.13 Here, a review of the
statutory history of what is now § 25 (a) confirms that
predicate convictions arising from separate qualifying criminal
12A similar understanding of this statute, and how its
purposes may differ from other repeat offender statutes with
sentence enhancements in this and other States may be found in
Note, Habitual Criminal Statutes: The Requirement of Prior
Convictions, 51 Harv. L. Rev. 345, 345-346 (1937).
13There are many sentence enhancement statutes. See, e.g.,
G. L. c. 279, § 8B (commission of crime while released on
personal recognizance); G. L. c. 269, § 10 (firearm offenses);
G. L. c. 266, § 40 (common and notorious thief); G. L. c. 94C,
§§ 32-32E (drug offenses); G. L. c. 90, § 24 (driving while
under influence).
14
incidents or episodes need not be separately prosecuted in order
for a person to be considered a habitual criminal pursuant to
§ 25 (a). Hall, 397 Mass. at 468-469.
2. Right of appeal. As discussed supra, when the
Commonwealth sought to appeal from the dismissal of the sentence
enhancement portions of the indictments, the Superior Court
clerk's office indicated that it would take no action without an
order from the county court.
Together, § 28E14 and rule 15 (a) (1)15 establish the right
of the Commonwealth to appeal from the decision of a judge
granting a motion to dismiss an indictment or complaint (among
other things). However, neither the statute nor the rule
specifies whether the Commonwealth may appeal from the dismissal
14 General Laws c. 278, § 28E (§ 28E), permits the
Commonwealth to appeal from "a decision, order or judgment" of a
judge in the Superior Court to the Appeals Court in three
circumstances: (1) where the judge "allow[s] a motion to
dismiss an indictment or complaint," (2) where the judge
"allow[s] a motion for appropriate relief under the
Massachusetts Rules of Criminal Procedure," and (3) provided
that a single justice of this court grants an application for
leave to appeal, where the judge "determine[s] a motion to
suppress evidence prior to trial." See Commonwealth v. Friend,
393 Mass. 310, 314 (1984) (notwithstanding text in § 28E, "an
appeal by the Commonwealth from an order or decision dismissing
an indictment in the Superior Court must first be entered in the
Appeals Court").
15 Rule 15 (a) (1) of the Massachusetts Rules of Criminal
Procedure (rule 15 [a] [1]), which implements § 28E, provides:
"The Commonwealth shall have the right to appeal to the Appeals
Court a decision by a judge granting a motion to dismiss a
complaint or indictment . . . ."
15
of a portion of an indictment (e.g., a sentence enhancement) as
opposed to the dismissal of an indictment in its entirety.
In Pelletier, 449 Mass. at 395-396, we determined that the
Commonwealth may not proceed as a matter of right under § 28E
and rule 15 (a) (1) where it seeks to appeal from only the
dismissal of subsequent offense charges. Pelletier involved a
charge of operating a motor vehicle while under the influence of
intoxicating liquor, third offense, under G. L. c. 90,
§ 24 (1) (a) (1). Pelletier, supra at 393. The Commonwealth
filed a petition pursuant to G. L. c. 211, § 3, seeking review
of a judge's decision to sentence the defendant as a first-time
offender despite the subsequent offense portion of the
indictment. Id. at 394.
In concluding that the G. L. c. 211, § 3, petition was
proper,16 we stated that it was "uncertain" whether the
Commonwealth could have appealed the trial judge's ruling
pursuant to § 28E and rule 15 (a) (1). Id. at 395. Next, we
noted that the subsequent offense portion of a charge "does not
create an independent crime," that it "concerns only the
16"Relief under G. L. c. 211, § 3, is available only in
extraordinary circumstances." Jaynes v. Commonwealth, 436 Mass.
1010, 1011 (2002), quoting Victory Distribs., Inc. v. Ayer Div.
of the Dist. Court Dep't, 435 Mass. 136, 137 (2001). "It is not
available where the petitioning party has or had 'adequate and
effective avenues other than G. L. c. 211, § 3, by which to seek
and obtain the requested relief.'" Jaynes, supra, quoting
Lanoue v. Commonwealth, 427 Mass. 1014, 1015 (1998).
16
punishment to be imposed if a defendant is convicted of the
underlying crime and the prior offenses are proved," and that
"[t]he defendant's sentence on the underlying charge in the
complaint is . . . 'inextricably bound' with the plea judge's
treatment of the subsequent offense portion of the complaint"
(citations omitted). Id. at 395-396. We then concluded that
"an appeal from a 'dismissal' of only that portion of the
complaint charging a subsequent offense may not lie." Id. at
396.
The Commonwealth argues that this holding is incorrect.17
It contends that, because rule 15 (a) (1) is the only procedural
mechanism by which the Commonwealth may appeal from a dismissal,
prohibiting the appeal from the dismissal of subsequent offense
charges undermines the purpose of § 28E. In revisiting the
matter, we agree with the Commonwealth and conclude that,
notwithstanding the reasoning in Pelletier, the Commonwealth may
take an appeal from the dismissal of the sentence enhancement
portion of an indictment pursuant to § 28E by way of rule
15 (a) (1).
Because the Commonwealth is able to obtain relief under
17
G. L. c. 211, § 3, in this case, the question whether it should
be allowed to proceed pursuant to rule 15 (a) (1) is moot.
Nevertheless, we address the question because "the situation
presented is 'capable of repetition, yet evading review.'"
Boelter v. Selectmen of Wayland, 479 Mass. 233, 238 (2018),
quoting Seney v. Morhy, 467 Mass. 58, 61 (2014).
17
We have highlighted the important jurisprudential interests
served generally by a right to appeal, including consistent
treatment of similar cases and the orderly development of a body
of law. See Burke v. Commonwealth, 373 Mass. 157, 160 (1977).
Appellate review also ensures the proper administration of
justice in individual cases. See, e.g., Swift v. American Mut.
Ins. Co. of Boston, 399 Mass. 373, 375 n.5 (1987).
These interests apply with equal force not only to a review
of the proceedings once a trial has concluded, but also to the
review of pretrial decisions that terminate criminal proceedings
prior to a trial being held. An appeal from a trial judge's
dismissal of an indictment pursuant to § 28E and rule 15 (a) (1)
"allow[s] the Commonwealth to reinstitute proceedings terminated
because of an incorrect ruling in the trial court, . . . but, on
the other hand, . . . allow[s] [appellate courts] to affirm
preliminary rulings which, in effect, put an end to a particular
prosecution." Burke, 373 Mass. at 160. The absence of a
mechanism to appeal from a decision that terminates a criminal
proceeding could "leave a class of cases, many of which involve
serious crimes, lost either to further prosecution or any
appellate review." Id.
A sentence enhancement charge cannot be brought alone;
instead, it must accompany a substantive criminal charge. See
Bynum v. Commonwealth, 429 Mass. 705, 709-710 (1999). However,
18
like the underlying felony charges they accompany, sentence
enhancements must be included in charging documents and voted on
by a grand jury. See G. L. c. 278, § 11A. See also
Commonwealth v. Miranda, 441 Mass. 783, 789 (2004) (indictments
including repeat offender charges must adequately notify
defendant of crime charged and jeopardy faced); Commonwealth v.
Fernandes, 430 Mass. 517, 521-522 (1999), cert. denied, 530 U.S.
1281 (2000) (repeat offender component should appear in
indictment). Subsequent offense charges are prosecuted in a
separate proceeding, only if and after the defendant has been
convicted of the underlying substantive offense. G. L. c. 278,
§ 11A.18 Thus, when a judge dismisses the sentence enhancement
portion of an indictment, he or she is terminating that
18General Laws c. 278, § 11A, provides that when a
defendant is charged with being a repeat offender, his or her
guilt as to the underlying charge is first determined,
"then before sentence is imposed, the defendant shall be
further inquired of for a plea of guilty or not guilty to
that portion of the complaint or indictment alleging that
the crime charged is a second or subsequent offense. If he
pleads guilty thereto, sentence shall be imposed; if he
pleads not guilty thereto, he shall be entitled to a trial
by jury of the issue of conviction of a prior offense,
subject to all of the provisions of law governing criminal
trials. . . . The court may, in its discretion, either
hold the jury which returned the verdict of guilty of the
crime, the trial of which was just completed, or it may
order the impanelling of a new jury to try the issue of
conviction of one or more prior offenses. Upon the
return of a verdict, after the separate trial of the issue
of conviction of one or more prior offenses, the court
shall impose the sentence appropriate to said verdict."
19
particular proceeding. See Pelletier, 449 Mass. at 396 (G. L.
c. 278, § 11A, requires defendants charged with sentence
enhancements "to be tried in a two-step, bifurcated procedure").
See also Miranda, 441 Mass. at 788 (§ 11A requires defendant "to
be tried . . . first, on the underlying substantive crime and,
then, in a separate proceeding, on that component of the charge
referring to the crime as a second or subsequent offense").
Because an unrestrained right to pretrial appeals by the
Commonwealth may be burdensome on defendants (and the courts),
G. L. c. 278, § 28E, limits such appeals to circumstances in
which the trial judge's decision forecloses the Commonwealth's
opportunity to go forward with the prosecution altogether.
Burke, 373 Mass. at 160. See Commonwealth v. Cavanaugh, 366
Mass. 277, 279 (1974) ("interlocutory appeals and reports should
not be permitted to become additional causes of the delays in
criminal trials which are already too prevalent").19 As a motion
judge who grants a motion dismissing the subsequent offense
portion of a charge terminates a separate proceeding
19Section 28E expressly authorizes the Commonwealth to
appeal from certain interlocutory decisions granting motions to
suppress, as such decisions "so often . . . in practical effect,
terminate the proceedings." Commonwealth v. Yelle, 390 Mass.
678, 685 (1984). See Commonwealth v. Anderson, 401 Mass. 133,
135 (1987) (decisions excluding Commonwealth's evidence only
appealable under Mass. R. Crim. P. 15 "if, as a practical
matter, that ruling [if permitted to stand] would terminate the
prosecution").
20
adjudicating the issue of conviction of prior offenses that was
included in an indictment, there is no reason that an appeal
should not lie under § 28E. See G. L. c. 278, §§ 11A, 28E. If
the Commonwealth is denied the ability to seek an appeal from
the dismissal of subsequent offense charges, those charges might
be "lost either to further prosecution or any appellate
review."20 Burke, 373 Mass. at 160.
Finally, the right to appeal from decisions interpreting
these statutes helps to ensure that they are enforced uniformly,
and that the Legislature's penological goals are realized.21
"Adherence to the principle of stare decisis provides
continuity and predictability in the law, but the principle is
not absolute. No court is infallible, and this court is not
barred from departing from previous pronouncements if the
20The Commonwealth has sometimes been successful obtaining
review of the dismissal of sentence enhancement portions of
indictments under G. L. c. 211, § 3, as in this case. We note,
however, that "[o]ur general superintendence power under G. L.
c. 211, § 3, is extraordinary and to be exercised sparingly, not
as a substitute for the normal appellate process or merely to
provide an additional layer of appellate review after the normal
process has run its course." Scott v. Attorney Gen., 448 Mass.
1002, 1003 (2006), quoting Scott v. District Attorney for the
Norfolk Dist., 445 Mass. 1022, 1022 (2005). For that reason, it
does not provide the right of appeal that the Commonwealth is
entitled to under § 28E and rule 15 (a) (1).
21As pointed out in the concurrence, many sentence
enhancement statutes, such as this one, are indeed harsh; but,
unless constitutionally infirm, it is the duty of the judicial
branch to interpret statutes passed by the Legislature, no more
and no less.
21
benefits of so doing outweigh the values underlying stare
decisis." Stonehill College v. Massachusetts Comm'n Against
Discrimination, 441 Mass. 549, 562, cert. denied sub nom.
Wilfert Bros. Realty Co. v. Massachusetts Comm'n Against
Discrimination, 543 U.S. 979 (2004). See Pearson v. Callahan,
555 U.S. 223, 233 (2009) (considerations in favor of stare
decisis are at nadir in cases involving procedural rules).
Although we concluded otherwise in Pelletier, we now conclude
that § 28E and rule 15 (a) (1) permit an appeal as of right from
a dismissal of sentence enhancement charges.22
One additional consideration merits discussion. The
Commonwealth's inability to review the dismissal of habitual
criminal portions of indictments under Mass. R. Crim. P. 15, yet
ability to obtain review under G. L. c. 211, § 3, as in this
case, undermines the intent of Mass. R. Crim. P. 15 (d), which
"authorize[s] awards of appellate fees and costs to defendants
in those situations where the Commonwealth is entitled to
appeal, or seek leave to appeal, from trial court rulings in a
defendant's favor." Commonwealth v. Augustine, 470 Mass. 837,
22Because we conclude that a motion to dismiss an
indictment or complaint includes the portion of the indictment
related to a sentence enhancement, we need not consider the
scope of the meaning of the words "allowing a motion for
appropriate relief under the Massachusetts Rules of Criminal
Procedure" in G. L. c. 278, § 28E. See Commonwealth v.
Therrien, 383 Mass. 529, 533 (1981).
22
840 (2015), quoting Commonwealth v. Phinney, 448 Mass. 621, 622
(2007). The purpose of this rule is "'to equalize the resources
of the defendant with those of the Commonwealth' in cases where
a defendant does not have court-appointed counsel but is forced
to defend against a Commonwealth appeal; and to prevent a
defendant's privately retained counsel from being placed 'in the
untenable position of either volunteering his services on appeal
or abandoning the defendant.'" Augustine, supra, quoting
Phinney, supra at 622 n.2. See Gonsalves, 432 Mass. at 616-617
(discussing at length origin and purposes of rule 15 [d]).
Where the Commonwealth seeks review under G. L. c. 211, § 3,
there is no appeal under rule 15, but instead a collateral
proceeding in the county court. Therefore, the defendant is not
entitled to reimbursement for costs and attorney's fees
associated with defending the Commonwealth's claim. See
Commonwealth v. Shaughessy, 455 Mass. 346, 353 (2009). In cases
involving the dismissal of sentence enhancement charges, we do
not believe that this result is consistent with the intent of
rule 15 (d).
3. Timeliness of Commonwealth's G. L. c. 211, § 3,
petition. The defendant contends that the single justice abused
her discretion by failing to deny the Commonwealth's motion to
enlarge the time to file a petition under G. L. c. 211, § 3.
This argument has no merit. The Commonwealth's application was
23
based on the erroneous concern that the time limits of Mass. R.
A. P. 4, as amended, 430 Mass. 1603 (1999), apply generally to
superintendence petitions filed before a single justice of this
court under G. L. c. 211, § 3. Because such a petition is not
an appeal governed by the rules of appellate procedure, the time
limits set forth in rule 4 of those rules do not apply. See
Mass. R. A. P. 1 (a), 365 Mass. 844 (1974) (defining scope of
rules as applying to "procedure in appeals to an appellate
court"). Although there may be circumstances in which a single
justice might deny such a petition as untimely, the decision
would not be governed by rule 4. The single justice did not
abuse her discretion in considering the Commonwealth's petition
in this case.
Conclusion. For the foregoing reasons, the judgment of the
single justice is vacated, and the case is remanded to the
county court for entry of an appropriate order by the single
justice consistent with this opinion.
So ordered.
GANTS, C.J. (concurring, with whom Lowy, J., joins). I
agree with the court that, given the legislative evolution of
the habitual criminal statute, G. L. c. 279, § 25 (a), we can
discern that the Legislature did not intend to require the
separate prosecution of predicate offenses, and that we must
respect that legislative intent. I write separately only to
make a few observations that suggest that § 25 (a) warrants
revisiting by the Legislature.
First, the legislative intent that we effectuate today is
that of the Legislature in 1887. As the court explains, the
Legislature that year chose to reenact a version of the habitual
criminal statute that did not require the separate prosecution
of predicate offenses, as opposed to an earlier version that did
include that requirement, thus reflecting a "conscious decision"
not to require separate prosecutions. Ante at , quoting
Commonwealth v. Resende, 474 Mass. 455, 466 (2016). This
decision has remained undisturbed since then, even though our
understanding of what is wise and just in a criminal justice
system has changed dramatically in the past 131 years. In 1887,
the punishment for a capital offense entailed "hanging the
convict by the neck until he is dead." Pub. St. 1882, c. 215,
§ 37. Those convicted of an offense punishable by imprisonment
could be sentenced to solitary confinement -- in which case they
would be fed "bread and water only" -- and hard labor. See Pub.
2
St. 1882, c. 215, § 3; Pub. St. 1882, c. 220, § 39; Pub. St.
1882, c. 221, § 29. Needless to say, attitudes about crime and
punishment have changed significantly since then.
Second, the sanction imposed by the habitual criminal
statute has become considerably more severe: whereas the 1887
statute provided that habitual criminals "shall be punished by
imprisonment . . . for twenty-five years," St. 1887, c. 435,
§ 1, the current statute provides that they "shall be punished
by imprisonment . . . for the maximum term provided by law."
G. L. c. 279, § 25 (a). For many offenses, the maximum term
provided by law is life. See, e.g., G. L. c. 265, § 17 (armed
robbery); G. L. c. 265, § 18A (armed assault in dwelling); G. L.
c. 265, § 18C (armed home invasion); G. L. c. 266, § 14 (armed
or assaultive burglary). This means that a habitual criminal
who in 1887 would have faced twenty-five years of imprisonment
could today face the far harsher punishment of imprisonment for
life.
Third, significant changes in other sentencing laws have
caused the habitual criminal statute to operate more harshly
today than it has in the past. For example, in 1993 the
Legislature enacted the so-called Truth in Sentencing Act,
St. 1993, c. 432, which modified sentencing laws in
Massachusetts such that, among other things, prisoners could no
longer obtain early release as a result of statutory good time,
3
St. 1993, c. 432, § 10, and judges no longer had the option of
imposing "reformatory" sentences (commonly referred to as
"Concord" sentences).1 St. 1993, c. 432, §§ 14-15, 17-20. See
Commonwealth v. Russo, 421 Mass. 317, 319 n.2 (1995). In
addition, in 2012 the Legislature amended the law governing
parole eligibility for habitual criminals; habitual criminals
are now eligible for parole only upon serving two-thirds of
their maximum sentence, G. L. c. 127, § 133B, as opposed to one-
half of their maximum sentence, as had been the case under prior
law. Compare St. 2012, c. 192, § 40, with St. 1955, c. 770,
§ 70. As a result of these changes, habitual criminals who may
in the past have had an opportunity to obtain early release
Prior to its abolition, the "Concord" sentence was "a
1
sentencing option widely used by Superior Court judges in the
1980's." Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 554
(2002). Defendants who received Concord sentences -- typically
those who were "deemed capable of rehabilitation" -- would be
sentenced not to State prison at the Massachusetts Correctional
Institution (M.C.I.) at Walpole (now M.C.I., Cedar Junction) but
to M.C.I., Concord (for male defendants) or M.C.I., Framingham
(for female defendants). Id. at 555. These defendants would
receive apparently long sentences, ranging up to the maximum
term provided by law, but would become eligible for parole after
serving only "a small fraction . . . of the stated sentence."
Id. See Massachusetts Sentencing Commission, Survey of
Sentencing Practices: Truth-in-Sentencing Reform in
Massachusetts 6 (Oct. 2000). The Concord sentence was available
as a sentencing option even where the defendant was convicted of
an offense with a mandatory minimum sentence. See Commonwealth
v. Brown, 431 Mass. 772, 778 (2000) (Concord sentence "was a
general sentencing option" that was "not incompatible" with
mandatory minimum sentence).
4
through statutory good time or to become eligible for parole at
an earlier time are no longer able to do so.
Fourth, while I agree with the court's interpretation of
the habitual criminal statute because it comports with the
Legislature's intent, I also note that this interpretation does
not comport with the common understanding of what constitutes a
"habitual criminal." A "habitual criminal" is commonly
understood to be someone who has engaged in recidivism -- that
is, an individual who, after having been punished for his or her
crimes, nevertheless goes on to commit further crimes. See
Black's Law Dictionary 827 (10th ed. 2014) (referencing
definition of "recidivist" under definition of "habitual
criminal"); id. at 1461 (defining "recidivist," also termed
"habitual criminal," as "[a] criminal who, having been punished
for illegal activities, resumes those activities after the
punishment has been completed"). Under this common
understanding of the term, an individual is considered a
habitual criminal only if he or she continues to commit serious
crimes after repeatedly being punished for those crimes.
Generally, habitual criminal statutes, such as G. L. c. 279,
§ 25 (b), impose severe punishment only after it is apparent
that repeated sentences to prison failed to deter or
rehabilitate the defendant, because the defendant continued to
commit serious crimes after having twice served prison time for
5
earlier crimes.2 The habitual criminal statute in § 25 (a) is at
odds with this common understanding. Because it does not
require the separate and sequential prosecution of predicate
offenses, it applies even where the predicate offenses both
occurred before any punishment. Thus, for instance, if an
individual struggling with drug addiction and desperate for
money to purchase oxycodone robs one convenience store in August
and another in September, serves a concurrent three-year prison
sentence for each of those robberies, and then commits a new
felony after his or her release from custody, he or she would be
considered a habitual criminal under § 25 (a) -- even though we
generally would not label this individual as such -- and would
have to receive the maximum sentence permitted by law for the
new offense.
For these reasons, I believe that it is time to reconsider
the wisdom and fairness of the habitual criminal statute. I
encourage the Legislature to do so.
2 General Laws c. 279, § 25 (b), imposes the maximum
sentence without the possibility of probation or parole for
"habitual offenders." In order to be considered a habitual
offender, an individual must have been convicted two times
previously of certain enumerated violent offenses, "arising out
of charges separately brought and tried, and arising out of
separate and distinct incidents that occurred at different
times, where the second offense occurred subsequent to the first
conviction."