Supreme Judicial Court of Massachusetts, Middlesex
Heard: February 7, 2019.
motion to reconsider sentencing was heard by Thomas P.
Billings, J., and a question of law was reported by him to
the Appeals Court.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
J. Rappaport for the defendant.
P. Blatchford, Jr., Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
defendant pleaded guilty to possession of a large capacity
feeding device, in violation of G. L. c. 269, § 10 (m),
as well as carrying a firearm without a license and related
offenses. As relevant here, the defendant was sentenced, over
the Commonwealth's objection, to a term of from one to
two and one-half years' imprisonment following his
conviction under G. L. c. 269, § 10 (m). In a motion for
reconsideration, the Commonwealth sought a sentence of at
least two and one-half years. The judge then reported the
following question to the Appeals Court:
"May a defendant who has been convicted of possession of
a large capacity feeding device, in violation of [G. L. c.
269, § 10 (m)], lawfully be sentenced to State [p]rison
for not less than one year nor more than two and one-half
years?" See Mass. R. Crim. P. 34, as amended, 442 Mass.
1501 (2004). We transferred the case to this court on our own
motion, and now answer the reported question,
indictments arose from an incident in June 2015, in which the
defendant brandished a gun at another driver and then drove
off before police arrived. Sergeant Marisol Nobrega of the
Lowell police department responded to a report of the
incident. Based on a general description of the man and the
vehicle involved, she located and arrested the defendant.
Under a floor mat in the defendant's vehicle, police
found a firearm with one round in the chamber and a large
capacity (twelve-shot) feeding device attached. The defendant
did not have a license to possess a firearm in Massachusetts.
December 2015, the defendant was indicted on charges of
possession of a large capacity feeding device, G L c 269,
§ 10 (m) (count 1); possession of a firearm without a
license, G L c 269, § 10 (a) (count 2); possession of a
loaded firearm, G L c 269, § 10 (n) (count 3); and
possession of ammunition without a firearm identification
card (FID), G L c 269, § 10 (h) (count 4) Following his
guilty pleas, he was sentenced to a term of from one to two
and one-half years in State prison on count 1; eighteen
months in a house of correction on count 2, concurrent ...