Argued December 8, 2014.
Indictments found and returned in the Superior Court Department on May 7, 2013.
A motion to dismiss was heard by Carol S. Ball, J.
Zachary Hillman, Assistant District Attorney ( Gretchen P. Sherwood, Assistant District Attorney, with him) for the Commonwealth.
David M. Skeels, Committee for Public Counsel Services, for the defendant.
Present: Rubin, Milkey, & Carhart, JJ.
[28 N.E.3d 8] Rubin, J.
This case concerns the meaning of a provision of the habitual offender statute, G. L. c. 279, § 25( a ), amended by St. 2012, c. 192, § 47. The question before us is whether a defendant given a sentence of three years or more in State prison that is suspended so that the defendant must serve less than three years has been " sentenced to state prison or state correctional facility or a federal corrections facility for a term not less than [three] years."
The prior version of the habitual offender statute applied to those who had " been twice convicted of crime and sentenced and committed to prison in this or another state ... for terms of not less than three years each." G. L. c. 279, § 25, amended by St. 1904, c. 303. The statute was amended in 2012 so that it now applies to anyone convicted of a felony who " has been previously twice convicted and sentenced to state prison or state correctional
facility or a federal corrections facility for a term not less than [three] years by the commonwealth, another state or the United States." G. L. c. 279, § 25( a ). Although the wording has changed slightly, we agree with the parties that there is no material difference between the language in the new version of the statute, which refers to being sentenced for a term of not less than three years, and that in the old statute. Consequently, although the statute has been amended to remove the reference to " commitment," the language of the current version with respect to being sentenced must be read in pari materia with that in the prior version.
The question before us is whether the defendant has two prior convictions that may serve as predicate convictions for application of the habitual offender statute. The defendant pleaded guilty to larceny over $250 in Middlesex County in 1995. He was sentenced to a so-called split sentence: three to four years in State prison, six months to be served, with the rest of the sentence suspended for four years under certain conditions. The defendant also pleaded guilty to burglary in New Hampshire in 1984, and was sentenced [28 N.E.3d 9] under a procedure that is unfamiliar in the Commonwealth. The defendant was originally sentenced to from three and one-half to seven years in New Hampshire State prison on this conviction, with the judge's order stating that after one year, if the defendant had been participating in a drug abuse program and submitting to random screening, and had received recommendations from both the warden and the alcohol/drug counselor, he might " apply for review of this sentence and for transfer to and treatment in a long-term residential drug treatment facility." After serving one year and eleven months of his sentence the defendant moved for reconsideration and the same judge granted his motion. His sentence was suspended, and conditions were imposed on that suspension. It is clear that this was a reconsideration of the defendant's original sentence. The judge's order did not refer to
the time the defendant had served, nor did it refer to the suspension of merely " a balance" of the sentence. The defendant appears to argue that the original sentence was vacated, and that his new sentence should be understood as a completely suspended sentence of from three and one-half to seven years. We may assume without deciding that he is correct in his characterization of the sentence handed down by the New ...