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Commonwealth v. Ruiz

Supreme Judicial Court of Massachusetts, Suffolk

October 11, 2018

COMMONWEALTH
v.
BERNIE RUIZ.

          Heard: May 7, 2018

          Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 10, 2017. The case was heard by Lenk, J.

          David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.

          Patrick A. Michaud for the respondent.

          Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.

          BUDD, J.

         Once again we have occasion to interpret G. L. c. 279, § 25 (a.) (§ 25 [a.]), which requires that a "habitual criminal" -- a defendant who has been convicted of a felony and has two prior convictions resulting in State or Federal prison sentences of three years or more -- be sentenced to the maximum term provided by law on the underlying conviction. We conclude that, although the predicate convictions must arise from separate incidents or episodes, Commonwealth v. Garvey, 477 Mass. 59, 66 (2017), the offenses need not be separately prosecuted. We further conclude that Mass. R. Crim. P. 15 (a) (1), as appearing in 474 Mass. 1501 (2016) (rule 15 [a] [1]), and G. L. c. 278, § 28E (§ 28E), grant the Commonwealth a right to appeal from the dismissal of the sentence enhancement portion of an indictment, and thus we overrule in part Commonwealth v. Pelletier, 449 Mass. 392, 395-396 (2007).

         Background.

         In March, 2016, a grand jury returned eleven indictments against the defendant for a variety of charges, including armed assault with intent to murder, in connection with an incident alleged to have occurred on February 17, 2016.[1]All but two of these indictments carried sentencing enhancements under § 25 (a.) .

         The predicate convictions supporting the habitual criminal portions of the indictments were the result of guilty pleas tendered by the defendant in 2008. The defendant pleaded guilty to separate charges of assault and battery by means of a dangerous weapon arising from two separate criminal episodes, which occurred in August and September of 2006.

         In 2008, the defendant was indicted for both offenses by the same grand jury and pleaded guilty to both charges in one proceeding. The defendant was sentenced to a term of from four to six years in State prison on each charge of assault and battery by means of a dangerous weapon, each sentence set to run concurrently.[2]

         Because the judge below concluded that the defendant's predicate convictions represented a single "incident" under § 25 (a.), he allowed the defendant's motion to dismiss the § 25 (a.) sentence enhancement charges associated with the March, 2016, indictments.[3] The Commonwealth filed a timely notice of appeal in the Superior Court, but the Superior Court clerk's office would not compile a record for appeal under rule 15 (a) (1) in light of our decision in Pelletier, 449 Mass. at 396, in which we held that the Commonwealth may not take an interlocutory appeal from the dismissal of only the sentence enhancement portion of a complaint. Thereafter, the Commonwealth filed a petition for relief pursuant to G. L. c. 211, § 3. A single justice of this court denied the Commonwealth's petition, and the Commonwealth appealed to the full court.

         Discussion.

         1. Applicability of G. L. c. 279, § 25 (a).

         In reviewing the single justice's determination to deny the Commonwealth's petition brought under G. L. c. 211, § 3, this court looks to whether "the single justice abused his or her discretion or made a clear error of law." Rogan v. Commonwealth, 415 Mass. 376, 378 (1993). Here, the Commonwealth asserts an error of law. Matter of a Grand Jury Subpoena, 447 Mass. 88, 90 (2006). Because the question for review is a matter of statutory interpretation, we review it de novo. Garvey, 477 Mass. at 61.

         General Laws c. 279, § 25 (a.), provides:

"Whoever is convicted of a felony and has been previously twice convicted and sentenced to [S]tate prison or [S]tate correctional facility or a [F]ederal corrections facility for a term not less than [three] years . . . shall be considered a habitual criminal and shall be punished . . . for such felony for the maximum term provided by law."

         The statute requires that a defendant be sentenced to the maximum sentence if found guilty of the underlying felony provided that he or she has at least two qualifying prior convictions; however, § 25 (a.) does not indicate whether those predicate convictions must have stemmed from separate prosecutions and sentencings.

         The defendant argues that the judge properly dismissed the sentence enhancements because, as he pleaded guilty to a set of charges that were combined and prosecuted together, the convictions cannot be counted separately for the purposes of § 25 (a.) . Conversely, the Commonwealth contends that § 25 (a.) does not require that the predicate convictions arise from charges separately prosecuted. See Commonwealth v. Hall, 397 Mass. 466, 468-469 (1986) (defendant may be convicted under statute where two predicate convictions arise out of unrelated incidents disposed of on same date with identical concurrent sentences) .

         As the statute is "simply silent" on this matter, "we consider that section in the context of the over-all objective the Legislature sought to accomplish." National Lumber Co. v. LeFrancois Constr. Corp., 430 Mass. 663, 667 (2000). Our review of § 25 (a.) 's historical development supports the conclusion that the legislative objective of § 25 (a.) is to punish all offenders who have prior convictions stemming from two or more separate and distinct criminal episodes, and that the Legislature specifically rejected the requirement of separate and sequential prosecutions for predicate offenses.

         The "Legislature developed a series of incarnations of repeat offender statutes, beginning in 1818, before enacting what is now § 25 (a.) ." Garvey, 477 Mass. at 62.[4] In Commonwealth v. Phillips, 11 Pick. 28, 34 (1831), this court concluded that, under the 1818 incarnation of the statute (which was also silent as to whether charges or indictments must have been separately prosecuted to count as individual convictions), two predicate convictions associated with two prior distinct criminal episodes that were brought and tried during the same term of the same court were "two convictions, within the meaning of the statute." See Ex Parte Seymour, 14 Pick. 40, 40-41 (1833) (period of liberty between predicate convictions not required).

         In the following year, the Legislature amended the statute, superseding this court's opinion in Phillips by expressly requiring that there should be two separate convictions and sentences, and two distinct discharges from prison, to bring a defendant within the scope of the statute. See St. 1832, c. 73, § l.[5] See also St. 1833, c. 85, §§ 1-2 (reenacting statute with substantiality of 1832 requirements);[6] Phillips v. Commonwealth, 3 Met. 588, 591 (1842) (1831 interpretation "probably gave rise to the statute passed at the next session of the legislature"); Commonwealth v. Mott, 21 Pick. 492, 500 (1839) ("One great object of the [1832] statute undoubtedly was, to declare that by two convictions, should thereafter be understood, sentences and commitments at two distinct times and discharges therefrom . . . instead of two sentences at the same term of a court"); Ex Parte Stevens, 14 Pick. 94, 96 (1833) (explaining intent and purpose of 1832 statute); Ex Parte Seymour, 14 Pick, at 41 note (noting that statutory revision added requirement that charges be sequential).

         In 1836, however, the Legislature again amended the repeat offender statute, eliminating the requirements that had been added in 1832 requiring separate convictions and a period of liberty between the imprisonment for one offense and the commission of the next. St. 1836, c. 4, §§ 17, 20.[7] Although the Legislature repealed the repeat offender statute in 1853, see St. 1853, c. 375, it enacted a version substantially similar to the earliest version of the statute in 1887, again omitting the 1832 requirements that predicate offenses occur as a result of separate convictions and occur with a period of liberty between them. St. 1887, c. 435, § 1. We have concluded that the Legislature's modifications to the statutory requirements of what is now § 25 (a.) in light of our decisions are highly germane to determining its intent. See Commonwealth v. Richardson, 175 Mass. 202, 207 (1900) .

         The Legislature's decision to enact a statute expressly requiring separate prosecutions of predicate offenses with a period of liberty between those prosecutions, followed by the repeal and replacement of that statute with a version that does not contain those requirements, "reflect[s] a conscious decision by the Legislature to deviate from the standard embodied in the [previous] statute." Commonwealth v. Resende, 474 Mass. 455, 466 (2016), quoting Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 433 (1983). Thus, here the Legislature has rejected the theory that more severe punishment is only appropriate when there have been two separate and distinct encounters with the criminal justice system that have failed to result in the theoretically beneficial effects of penal discipline. See Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 533-535 (2013) (examining statutory history to determine statute's meaning).

         In 2012, the Legislature reenacted § 25 (a.) as part of criminal justice reform legislation, also inserting new subsections removing the possibility of parole for "habitual offenders"[8] of particular offenses enumerated in the statute. G. L. c. 279, § 25 (b) - (d), inserted by St. 2012, c. 192, § 47. Under those newly inserted provisions, unlike in § 25 (a.), the Legislature expressly required that predicate offenses have been "separately brought and tried." See G. L. c. 279, § 25 (b) (§ 25 [b]). That the Legislature reenacted the same statute in 2012 without including the requirement that the predicate offenses be separately brought and tried under § 25 (a.), yet included that requirement under § 25 (b), provides further support that the Legislature did not intend to modify prior assumptions about this statute to include this requirement.[9] See Peoplev.Braswell, 103 Cal.App. 399, 407-408 (1930) (where Legislature required predicate convictions to be "separately brought and tried" for one sentence enhancement scheme but not another, "legislature may have considered . . . prior convictions [in latter scheme] to have ...


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