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Commonwealth v. Garvey

Supreme Judicial Court of Massachusetts, Suffolk

May 9, 2017

COMMONWEALTH
v.
JAMES GARVEY.

          Heard: December 8, 2016.

         Indictments found and returned in the Superior Court Department on April 1, 2014. A motion to dismiss was heard by Carol S. Ball, J.

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

          Zachary Hillman, Assistant District Attorney (Kathleen Celio, Assistant District Attorney, also present) for the Commonwealth.

          Robert A. O'Meara (Joseph M. Perullo also present) for the defendant.

          Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1]

          BUDD, J.

         This case requires us to interpret G. L. c. 279, § 25 (a.), one provision in the habitual criminal statute, G. L. c. 279, § 25. Section 25 (a.) provides for an enhanced penalty where a defendant has two prior convictions resulting in State or Federal prison sentences of three years or more (qualifying sentences) . We conclude that § 25 (a.) requires that the underlying convictions arise from separate incidents or episodes of criminal behavior. We also conclude that, in this case, the Commonwealth failed to provide the grand jury with sufficient evidence to support the habitual offender portions of the indictments. We therefore affirm the order dismissing the habitual offender portions of the indictments currently pending against the defendant.

         Background.

         The defendant, James Garvey, was indicted on charges alleging violations of the controlled substances law, G. L. c. 94C. After returning eight indictments relating to the charged drug crimes, the grand jury received evidence concerning the defendant's prior convictions, which the prosecutor introduced to establish probable cause for enhanced penalties to be available in relation to these drug offenses. In particular, the grand jury heard that on March 13, 2002, the defendant was convicted of four offenses, each described in a separate count of a single indictment, and was sentenced to at least three years in State prison on each offense. The offenses were (1) kidnapping, (2) receiving stolen property, (3) possession of a firearm with an obliterated serial number, and (4) unlawful possession of a firearm. The grand jurors did not, however, hear any evidence as to when these offenses occurred.[2] The grand jury also heard that on December 5, 2002, the defendant was convicted of distribution of a class B substance and conspiracy to violate the controlled substance act, but they did not hear any testimony related to sentencing on those offenses.

         Based on the evidence presented relating to the alleged current drug offenses and the prior convictions, the grand jury ultimately voted to indict the defendant for trafficking in 200 grams or more of oxycodone and hydromorphone, G. L. c. 94C, § 32E (c) (4); trafficking in thirty-six grams or more of morphine, G. L. c. 94C, § 32E (c) (2); five counts of possession of a class B substance with the intent to distribute, G. L. c. 94C, § 32A (a.), each as a subsequent offender, G. L. c. 94C, § 32A (b); and possession of a class E substance with the intent to distribute, G. L. c. 94C, § 32D (a.), as a subsequent offender, G. L. c. 94C, § 32D (b). Each charge also carried habitual criminal and school zone enhancements. See G. L. c. 279, § 25; G. L. c. 94C, § 32J.

         The defendant moved to dismiss the habitual offender portions of the indictments, arguing that the grand jury heard no evidence that his four underlying 2002 convictions arose from different criminal episodes. A Superior Court judge allowed the motion in a margin endorsement, writing that "to be a[] habitual offender, one must have at least two prior convictions with qualifying sentences resulting from separate, prior criminal episodes" (emphasis in original; quotation omitted). The Commonwealth appealed from the judge's order. See G. L. c. 278, § 28E; Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass. 1501 (1996). We transferred the case from the Appeals Court on our own motion.

         Discussion.

         Section 25 (a.) requires a judge to sentence a person found guilty of the underlying felony to the maximum penalty prescribed by law for that felony, where that person has at least two prior convictions with qualifying sentences. See Commonwealth v. Luckern, 87 Mass.App.Ct. 269, 269-270 (2015). In reviewing the judge's decision to dismiss the habitual offender portions of the indictments pending against the defendant, our task is to interpret the meaning of this statute. We address that question first, before considering whether the Commonwealth presented adequate facts to enable the grand jury to make a probable cause determination.

         1. Statutory ...


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