Lead Opinion
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 associated with it an armed career criminal sentence enhancement charge under G. L. c. 269,
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.
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 (A); and unlawful
ii. Facts.
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.
Telford motioned to the defendant to follow him to a different part of the parking lot where they could speak further. As the defendant wаlked to this location, Telford noticed that the defend
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,
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,
The motion judge determined that a limited “intrusion” — i.e., seizure — occurred when Telford requested or directed the 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 bоdy. The seizure of the defendant effectuated by Telford and McCarthy was constitutionally proper. See DePeiza,
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 ACC A), 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,
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*463 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 Qi) 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).
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 the phrase, “arising from separate incidences.”
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.”
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*465 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 amendment in 1988. See Pub. L. No. 100-690, 102 Stat. 4181, § 7056 (1988). In United States v. Letterlough,
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.
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 comеs 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 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
The rationale underlying the majority view that graduated sentence enhancement statutes should be interpreted to require sequential prosecutions and convictions of the predicаte crimes is well expressed by the Pennsylvania Supreme Court in Shiffler,
“ ‘[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*468 to the law” (emphasis in original; citations omitted).21
Decisions in other States reflect similar reasoning. See, e.g., State v. Ledbetter,
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 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
Finally, insofar as the meaning of “arising from separate incidences” in § 10G (c) is ambiguous,
“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,
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.
Notes
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 conclude in this opinion that the defendant’s motions to suppress were properly denied.
The possession with intent charge was placed on file.
The defendant’s conviction of unlawful possession of a loaded firearm and the accompanying armed career criminal charge were dismissed by agreement.
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 sеparate predicate offense under the Massachusetts armed career criminal act (ACCA).
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.”
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 рolice 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.
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.
Telford testified that “blading away” refers to the action of creating a thin profile of оneself with respect to another viewpoint, effectively hiding one side of the body from the other person’s view.
See note 7, supra, and accompanying text.
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].”
See, e.g., Commonwealth v. Eberhart,
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.
At issue in this case are the defendant’s convictions under § 10G (c), but our analysis applies with equal force to § 10G (b).
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 happening; an event, esp. one that is unusual, important, or violent,” Black’s Law Dictionary 879 (10th ed. 2014).
Section 10G was inserted by St. 199S, 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, § 13 IP.
The legislative record of the omnibus bill’s enactment inсludes 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.”
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 whеn enacting the Massachusetts ACCA appears inescapable.
Cf. Commonwealth v. Callahan,
But see, e.g., Watson v. State,
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).
Accord Commonwealth v. McClintic,
See also State v. Ellis,
This rationale reflects what the Pennsylvania Supreme Court terms a “recidivist philosophy.” See Commonwealth v. Shiffler,
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 incidents.” Post at 470. 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.
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 simultanеous — 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,
Dissenting Opinion
(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 arе 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
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.
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, 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
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.
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
See, e.g., United States v. Elliott,
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.
For example, the court cites a Nebraska case, State v. Ellis,
See, e.g., Watson v. State,