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Commonwealth v. Ehiabhi

Supreme Judicial Court of Massachusetts, Suffolk

October 13, 2017


          Heard: May 4, 2017

         A pretrial motion to suppress evidence was heard by Mary K. Ames, J.; the cases were tried before Elizabeth M. Fahey, J., and the correctness of the sentence was reported by her to the Appeals Court.

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

          Zachary Hillman, Assistant District Attorney, for the Commonwealth.

          Sarah E. Dolven for the defendant.

          Patrick Levin, Committee for Public Counsel Services, _& Chauncy B. Wood, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

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

          CYPHER, J.

         This case examines a sentencing scheme that punishes the same conduct with different mandatory minimum sentences. See G. L. c. 94C, § 32A (b), (d). Both subsections punish possession with intent to distribute a class B substance, but § 32A (b) carries a mandatory minimum sentence of two years while § 32A (d) carries a mandatory minimum sentence of three and one-half years. In the law's current form, § 32A (a.) punishes first-time distribution of any of forty class B substances, including phencyclidine (PCP), cocaine, and methamphetamine; § 32A (b) punishes subsequent distribution of a class B substance; § 32A (c_) punishes first-time distribution of PCP, cocaine, or methamphetamine; and § 32A (d) punishes subsequent distribution of PCP, cocaine, or methamphetamine. G. L. c. 94C, § 32A.[2] The defendant, Moses Ehiabhi, was charged and convicted of possession with intent to distribute cocaine, second offense, under § 32A (c_) and (d), but the judge, over the objection of the Commonwealth, sentenced pursuant to § 32A (a.) and (b) .[3]

         Pursuant to G. L. c. 231, § 111, [4] and Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004), [5] the trial judge reported the correctness of her sentencing decision to the Appeals Court, and allowed the defendant's motion to stay the sentence pending his appeal. The Commonwealth appeals from both the sentence and the stay of sentence. The defendant also appeals, claiming error in the denials of his motion to suppress evidence and his motion for a required finding of not guilty on the assault and battery charge, and in the jury instruction on self-defense as to that charge. The Appeals Court consolidated the appeals, and we transferred the case to this court on our own motion. For the reasons detailed below, we affirm the convictions and remand to the Superior Court for resentencing.[6]

         1. The reported question and the Commonwealth's appeal.

         After the Commonwealth moved for sentencing, the judge asked why the Commonwealth had proceeded under the section of the statute that provided a harsher minimum mandatory sentence where the elements of both sections were identical. The prosecutor explained that her office "typically" indicted cocaine charges under the enhanced section because cocaine is "considered a more dangerous substance than other items under [c]lass B, such as pills." The prosecutor also justified her pursuit of harsher penalties in this case by the fact that the defendant was on Federal supervised release for the same crime when he committed the new offense.

         The judge rejected both arguments, concluding that ambiguity existed in the conflicting mandatory minimum sentences of two years for a repeat distributor of cocaine under § 32A (b) and three and one-half years for a repeat distributor of cocaine under § 32A (d). The judge read this conflict to require application of the rule of lenity in favor of the less stringent sentence, citing Commonwealth v. Gagnon, 387 Mass. 567, 569, S_.C., 387 Mass. 768 (1982), cert, denied, 464 U.S. 815 (1983); United States v. Shaw, 920 F.2d 1225, 1228 (5th Cir.), cert denied, 500 U.S. 926 (1991).

         The Commonwealth argues that the trial judge erred in sentencing the defendant pursuant to G. L. c. 94C, § 32A (b), where he had been charged and convicted pursuant to § 32A (d), and where the prosecutor retains the discretion to charge under either subsection. The defendant contends that the judge properly applied the rule of lenity where the statute is ambiguous in its provision of inconsistent penalties for the identical offense. We agree with the Commonwealth that the statute is unambiguous, and preserves the prosecutor's discretion to choose among its subsections.

         a. Ambiguity.

         The levels of punishment upon conviction of possession with intent to distribute a controlled substance are determined with reference to which of the five classes of controlled substances the particular controlled substance belongs. G. L. c. 94C, § 31. "Such disparate sentences embody the legislative judgment differentiating certain classes of controlled substances as more detrimental to the mind or the body than others." Commonwealth v. Chavis, 415 Mass. 703, 709 n.9 (1993) .

         Cocaine is listed as a class B controlled substance, with penalties provided at G. L. c. 94C, § 32A. Section 32A was inserted into the General Laws by St. 1980, c. 436, "as part of a major revision of the Controlled Substances Act." Commonwealth v. Neiman, 396 Mass. 754, 758 (1986). As originally enacted, § 32A had two paragraphs. Paragraph (a.) provided a penalty of from one to ten years for first-time distribution of a class B substance, without requiring a mandatory minimum sentence, and paragraph (b) provided a mandatory minimum of three years for subsequent offenses, St. 1980, c. 436, § 4, later reduced to two years. St. 2012, c. 192, § 13.

         In the years following the enactment of § 32A, the Legislature singled out three drugs for harsher punishment than other class B substances: PCP in 1981, St. 1981, c. 522 (adding paragraph [c] to impose one-year mandatory minimum sentence for distribution of PCP); cocaine in 1988, St. 1988, c. 125, § 1 (amending paragraph [c] to impose same penalty for distribution of cocaine); and methamphetamine in 1991, St. 1991, c. 391 (same, for distribution of methamphetamine). See Commonwealth v. Bradley, 35 Mass.App.Ct. 525, 526 n.l (1993) (discussing statutory history of § 32A). When the Legislature added cocaine to paragraph (cO, it also inserted paragraph (d), which provided a five-year minimum sentence for subsequent offenders "convicted of violating the provisions of subsection (cO, " St. 1988, c. 125, §§ 1-2; that minimum was later reduced to three and one-half years. St. 2012, c. 192, § 14. The language of paragraph (b) remained unaltered, and continues to apply to "[a]ny person convicted of violating this section." See Bradley, supra (§ 32A [b] was "[a] repeat offender provision that applied to all offenses outlined in the statute"). Cocaine, as well as PCP and methamphetamine, remain among the forty enumerated class B substances. G. L. c. 94C, § 31 Class B 2 (a) (4).

         The statutory scheme, when read as a whole and in the context of its history, is not ambiguous, and therefore the rule of lenity is not applicable. "It is a fundamental tenet of due process that '[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.'" Gagnon, 387 Mass. at 569, quoting United States v. Batchelder, 442 U.S. 114, 123 (1979). "Under the rule of lenity, 'if we find that the statute is ambiguous or are unable to ascertain the intent of the Legislature, the defendant is entitled to the benefit of any rational doubt.' . . . 'This principle applies to sentencing as well as substantive provisions.'" (Citations omitted). Commonwealth v. Richardson, 469 Mass. 248, 254 (2014) .

         We have previously rejected the argument that § 32A is unconstitutionally void for vagueness, reasoning that "[w]e simply see no significant ambiguity in the legislative intent expressed in § 32A (a.) and § 32A (c0 ." Cedeno v. Commonwealth, 404 Mass. 190, 194 (1989). We reaffirm the view that "[i]f there is a problem in a constitutional sense in the coexistence of § 32A (a.) and § 32A (c0, it does not lie in any uncertainty about what those sections mean." Id. at 196. For similar reasons, the United States Supreme Court upheld two firearm statutes that punished the same conduct with different sentences. Batchelder, 442 U.S. at 116, 123 ("The provisions in issue . . . unambiguously specify the activity proscribed and the penalties available upon conviction. . . . That this particular conduct may violate both [t]itles [of the United States Code] does not detract from the notice afforded by each. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments" [citation omitted]). Where the statute is unambiguous, the rule of lenity is inapposite. See Richardson, 469 Mass. at 254.

         b. Prosecutorial discretion.

         Because we find the rule of lenity inoperative here, we proceed to the separation of powers challenge. Verrochi v. Commonwealth, 394 Mass. 633, 638 (1985) (construing statute to avoid constitutional difficulties). Article 30 of the Massachusetts Declaration of Rights forbids the legislative and executive branches from exercising powers entrusted to the judicial branch if that exercise "restrict[s] or abolish[es] a court's inherent powers." Commonwealth v. Cole, 468 Mass. 294, 301 (2014).[7] Although "[a]n absolute division of the [executive, legislative, and judicial] functions is neither possible nor always desirable, " Opinion of the Justices, 365 Mass. 639, 641 (1974), a statute impermissibly allocating a power held by only one branch to another violates art. 30. Cole, supra at 302.

         Within these constitutional confines, prosecutors enjoy considerable discretion. See Commonwealth v. Rivas, 466 Mass. 184, 188 n.4 (2013), quoting Commonwealth v. Johnson, 75 Mass.App.Ct. 903, 906 (2009) ("The Commonwealth retains the authority to make the determination in the first instance of the offense with which a person in the defendant's circumstance should be charged"). Indeed, a prosecutor has the discretion to charge a defendant under multiple enhancement statutes, retaining that discretion up to the sentencing stage, where, if the prosecutor chooses, he or she may file a nolle prosequi on all but one charge. Richardson, 469 Mass. at 254-255. See Bynum v. Commonwealth, 429 Mass. 705, 707 (1999) (§ 32A[d] is sentence enhancement provision rather than separate crime). Moreover, the decision to prosecute is "particularly ill-suited to judicial review." Commonwealth v. Latimore, 423 Mass. 129, 136 (1996), quoting Wayte v. United States, 470 U.S. 598, 607 (1985) .

         Accordingly, a prosecutor does not infringe on the court's sentencing power merely by selecting charges from among multiple applicable subsections. See Cedeno, 404 Mass. At 196-197 ("Prosecutors have wide ranges of discretion in deciding whether to bring criminal charges and in deciding what specific charges to bring"). See also Commonwealth v. Zwickert, 37 Mass.App.Ct. 364, 367 (1994) ("the grand jury, having before it evidence of the defendant's possession of cocaine with intent to distribute, might have framed the indictment as possession of a [c]lass B substance with intent to distribute, thus exposing the defendant only to the lesser penalty of § 32A [a.]); but because the indictment identified the Class B substance as cocaine, it was a charge under § 32A [c_]") . The Batchelder Court similarly rejected the concern that legislative overlap had endowed the prosecutor with "unfettered" discretion:

"[T]here is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context."

Batchelder, 442 U.S. at 125. Compare Cole, 468 Mass. at 304 (invalidating under art. 30 statute authorizing parole board to impose new mandatory sentences).

         Section 32A thus does not represent an executive usurpation of judicial sentencing powers, but an appropriate exercise of prosecutorial discretion. That discretion, although broad, remains constitutionally constrained by the equal protection ...

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