Heard: May 7, 2018
action commenced in the Supreme Judicial Court for the county
of Suffolk on January 10, 2017. The case was heard by Lenk,
L. Sheppard-Brick, Assistant District Attorney, for the
Patrick A. Michaud for the respondent.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
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] ),
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).
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.All but two of
these indictments carried sentencing enhancements under
§ 25 (a.) .
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.
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.
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. 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.
Applicability of G. L. c. 279, § 25 (a).
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.
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."
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.
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
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
"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. 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).
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. See also St. 1833, c. 85,
§§ 1-2 (reenacting statute with substantiality of
1832 requirements); 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  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).
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. 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) .
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).
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" 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. 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