Supreme Judicial Court of Massachusetts, Middlesex
January 11, 2016.
Indictments found and returned in the Superior Court
Department on October 28, 2008.
cases were tried before Sandra L. Hamlin, J., and a
motion to correct sentence, filed on May 4, 2014, was heard
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
M. Fox for the defendant.
KerryAnne Kilcoyne, Assistant District Attorney, for the
Chauncey B. Wood & Timothy St. Lawrence, for
Massachusetts Association of Criminal Defense Lawyers, amicus
curiae, submitted a brief.
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
defendant, Michael Boyd, was convicted on counts of an
indictment charging two sentencing enhancements, one as a
second-time offender, see G. L. c. 269, § 10 (
d ), and one under the Massachusetts armed career
criminal (ACC) statute, see G. L. c. 269, § 10G (
c ), both premised on an underlying conviction of
unlawful possession of a sawed-off shotgun, in
violation of G. L. c. 269, § 10 ( c ). The
Commonwealth moved for sentencing consistent with the
fifteen- to twenty-year term of imprisonment required by the
ACC statute, while the defendant recommended a lesser
punishment, also within the range afforded by the ACC
statute. See G. L. c. 269, § 10G (
c ). The defendant was sentenced to a term of from
fifteen to seventeen years in State prison on the ACC
enhancement and was not sentenced on the second offender
defendant appealed from the ACC conviction, arguing that the
Commonwealth's evidence was insufficient to support a
sentence enhancement under that provision. In an unpublished
memorandum and order pursuant to its rule 1:28, the Appeals
Court agreed, reversing the conviction and remanding the case
for resentencing. See Commonwealth v. Boyd, 85
Mass.App.Ct. 1106, 5 N.E.3d 1 (2014). The Appeals Court's
decision ostensibly left the defendant with convictions of
unlawful possession of a sawed-off shotgun, which carries a
sentencing range of from eighteen months to life, see G. L.
c. 269, § 10 ( a ), ( c ); and the
second offender enhancement conviction for the same offense,
which carries a mandatory term of imprisonment in State
prison of between five and seven years, see G. L. c. 269,
§ 10 ( d ).
remand, the case presented a unique circumstance: a statute
that affords greater potential punishment for an underlying
crime than for a subsequent offense. Consequently, at the
resentencing hearing, the defendant argued that he should be
sentenced under the enhancement statute, while the
Commonwealth sought the imposition of a longer sentence on
the underlying crime. The Commonwealth, over defense
objection, entered a nolle prosequi of the second offender
enhancement charge, and the judge sentenced the defendant
to a term of from twelve to fifteen years on the underlying
conviction of unlawful possession of a sawed-off shotgun.
present appeal, the defendant argues that it was error for
the resentencing judge to allow the Commonwealth to avail
itself of the nolle prosequi procedure after the initial
sentencing had already occurred, particularly where such a
decision exposed him to a greater potential punishment.
Commonwealth v. Richardson, 469 Mass. 248, 249, 13
N.E.3d 989 (2014), decided one month after the resentencing
in the present case, we established that, absent legislative
intent to the contrary, " a defendant may be sentenced
under only one sentencing enhancement statute," even if
he or she was convicted pursuant to multiple such provisions.
The Commonwealth, however, is free to charge a defendant
under multiple sentencing enhancement statutes, and if it
secures multiple convictions, it may, prior to sentencing,
" exercise its prosecutorial prerogative to decide which
enhancement provision will apply ... by entering a nolle
prosequi of all but one sentencing enhancement count."
Id. at 254. Because in Richardson the
Commonwealth had not exercised its nolle prosequi authority
prior to sentencing, and because the judge sentenced the
defendant under two sentencing enhancement provisions, we
remanded the case for resentencing, concluding that, "
[w]here ... the Commonwealth ...