Heard: December 8, 2016.
found and returned in the Superior Court Department on April
1, 2014. A motion to dismiss was heard by Carol S. Ball, J.
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
A. O'Meara (Joseph M. Perullo also present) for the
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
& Budd, JJ.
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.
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. 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.
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.
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
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.