Heard: May 4, 2017
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.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Zachary Hillman, Assistant District Attorney, for the
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. 
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. 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) .
to G. L. c. 231, § 111,  and Mass. R. Crim. P. 34, as
amended, 442 Mass. 1501 (2004),  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.
The reported question and the Commonwealth's
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
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).
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.
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) .
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.
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)
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) .
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.
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). 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
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) .
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).
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