Commonwealth v. Ruiz

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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."