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Commonwealth v. Boyd

Supreme Judicial Court of Massachusetts, Middlesex

April 8, 2016

Commonwealth
v.
Michael S. Boyd

         Argued January 11, 2016.

          Indictments found and returned in the Superior Court Department on October 28, 2008.

         The cases were tried before Sandra L. Hamlin, J., and a motion to correct sentence, filed on May 4, 2014, was heard by her.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          James M. Fox for the defendant.

          KerryAnne Kilcoyne, Assistant District Attorney, for the Commonwealth.

          Chauncey B. Wood & Timothy St. Lawrence, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

         Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

          OPINION

         Cordy, J.

         The 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,[1] see G. L. c. 269, § 10G ( c ), both premised on an underlying conviction of unlawful possession of a sawed-off shotgun, in

Page 100

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.[2] 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 enhancement.

         The 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 In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court agreed, reversing the conviction and remanding the case for resentencing.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 ).

         On 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,[3] 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.

         In his 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.

Page 101

          In 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 ...


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