Heard: April 5, 2016.
action commenced in the Supreme Judicial Court for the county
of Suffolk on August 20, 2015. The case was reported by
C. Maxim, Assistant District Attorney, for the Commonwealth.
Matthew R. Segal (Keith J. Nicholson, Adriana Lafaille, &
Nancy Gertner with him) for the defendant.
Benjamin H. Keehn & Paul R. Rudof, Committee for Public
Counsel Services, & Barbara J. Dougan, Michael B.
Keating, Daniel N. Marx, & Daniel McFadden, for Committee
for Public Counsel Services & others, amici curiae,
submitted a brief.
Quinn-Judge, Monica R. Shah, & Daniel K. Gelb, for The
Constitution Project & others, amici curiae, submitted a
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ. 
case we consider whether G. L. c. 211E, § 3
(e), authorizes a sentencing judge to
depart from the mandatory minimum terms specified by statute
for subsequent drug offenses. We conclude that because the
Legislature has not yet enacted into law sentencing
guidelines recommended by the Massachusetts Sentencing
Commission (commission), a sentencing judge currently may not
impose a sentence that departs from the prescribed mandatory
minimum term. We do not reach in this case the constitutional
claims that the defendant has raised for the first time in
August, 2013, a Middlesex County grand jury indicted the
defendant, Imran Laltaprasad, on a charge of possession with
intent to distribute heroin, subsequent offense, G. L. c.
94C, § 32 (a.), (b); and two charges of possession with
intent to distribute cocaine, subsequent offense, G. L. c.
94C, § 32A (c0, (d) . In July, 2015, a jury found the
defendant guilty of possession with intent to distribute
heroin, and one count of possession with intent to distribute
cocaine; the defendant was found not guilty on the other
count of that crime.The defendant pleaded guilty to the
subsequent offense portion of each of these charges. See G.
L. c. 94C, §§ 32 (b) (heroin), 32A (d) (cocaine).
Both counsel presented their sentencing recommendations,
and after hearing, the trial judge stated that she would
depart downward from the mandatory minimum sentence
provisions of the two subsequent offense statutes, each of
which requires a minimum term of three and one-half years in
State prison, and would impose instead a sentence of two and
one-half years in a house of correction. In a written
memorandum of decision, the trial judge explained her
"(1) The defendant does not have a prior conviction for
drug trafficking at seriousness levels 7 or 8; and
"(2) The facts and circumstances surrounding this matter
warrant a lesser sentence. Specifically, the defendant was
arrested with less than 1 gram of the controlled substances.
Further the defendant was severely injured when another
individual shot a firearm at him. He suffered 11 gunshot
wounds and endured 21 surgeries prior to trial. The defendant
also lost his leg and sustained serious abdominal damage due
to those injuries. Evidence of his current medical condition
was presented at trial. Given both the relatively small
amount of contraband involved in the arrest and the extreme
medical condition of the defendant, the Court will depart
downward and impose a sentence of 2.5 years in the House of
30, 2015, the Commonwealth filed a motion to reconsider the
sentences imposed, which the judge denied. The Commonwealth
then filed in the county court a petition for relief pursuant
to G. L. c. 211, § 3. In October, 2015, the single
justice reserved and reported the case to the full court
sentencing provisions of three statutes are at issue in this
case. The first two are the statutory drug crimes of which
the defendant was convicted: possession of heroin with intent
to distribute, second or subsequent offense, G. L. c. 94C,
§ 32 (b); and possession of cocaine with intent to
distribute, second or subsequent offense, G. L. c. 94C,
§ 32A (d). Upon a defendant's conviction and
regardless of the amount of heroin or cocaine involved, the
Legislature has prescribed in each of these statutes a
mandatory minimum period of incarceration, three and one-half
years, to be served in State prison.
third statute, G. L. c. 211E, § 3 (e), is part of a chapter of the General Laws
entitled "Massachusetts Sentencing Commission" that
was added by the Legislature in 1996. See St. 1996, c. 12,
§ 9 (1996 act). Section 3 of c. 211E focuses
specifically on the responsibility of the commission to
recommend sentencing guidelines for use in the District
Court, the Boston Municipal Court, and the Superior Court.
See St. 1993, c. 432, § 1 (a). Although the sentence
ranges to be set by the guidelines are to be presumptive in
most circumstances, § 3 (e) provides:
"Except for the crimes set forth in [G. L. c. 265,
§ 1, (murder)], the sentencing judge may depart from the
range established by the sentencing guidelines and impose a
sentence below any mandatory minimum term prescribed by
statute if the judge sets forth in writing reasons for
departing from that range on a sentencing statement . . .
based on a finding that there exists one or more mitigating
circumstances that should result in a sentence different from
the one otherwise prescribed by the guidelines and below any
applicable mandatory minimum term."
trial judge did not expressly reference G. L. c. 211E, §
3 (e), in sentencing the defendant or in her
sentencing memorandum, but the record indicates that in
departing from the mandatory minimum sentencing provisions,
she relied on § 3 (e) for authority to do so.
The Commonwealth argues that the judge lacked authority to
reach this result because the mandatory minimum sentence
departure authorization in § 3 (e) only becomes
operative when the commission's recommended sentencing
guidelines are "enacted into law" by legislative
vote, as mandated by c. 211E, § 3 (a.) (I),
and the Legislature has not done so to date. The defendant
argues, however, that the plain language of § 3
(e) authorizes judges to depart from mandatory
minimum sentences independently of the enactment of any
sentencing guidelines and, even if § 3 (e)
's language and meaning were not ...