Com. v. Cowan

• Citation: 422 Mass. 546,664 N.E.2d 425
• Parties: COMMONWEALTH v. Ronald David COWAN.
• Decision Date: 25 April 1996
• Court: United States State Supreme Judicial Court of Massachusetts

Page 425

664 N.E.2d 425

422 Mass. 546

COMMONWEALTH v. Ronald David COWAN.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Feb. 7, 1996.

Decided April 25, 1996.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 16, 1995. The case was heard by Nolan, J.

Robert J. Carnes, Pittsfield, for the defendant.

Eric Neyman, Assistant District Attorney, for the Commonwealth.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and FRIED, JJ.

LYNCH, Justice.

On September 23, 1994, the defendant was tried before a jury of six in the District Court and found guilty of possession of a firearm in a public place without a license under G.L. c. 269, § 10(a ) (1994 ed.), and sentenced to a mandatory minimum term of one year in a house of correction. The defendant filed a timely notice of appeal. ¹ Thereafter, the defendant moved to revise or revoke his sentence, and the judge revised the sentence to permit the defendant to serve the final six months of his sentence under house arrest secured by his wearing an electronic monitoring device. The judge's order also permitted the defendant to leave the house to go to work, counselling, and church.

The Commonwealth sought relief from the revise or revoke order under G.L. c. 211, § 3 (1994 ed.). A single justice of this court vacated the order and reinstated the original sentence of one year in a house of correction. The defendant appealed and his sentence has been stayed pending the appeal.

The defendant argues on appeal that: (1) the Commonwealth's challenge to the allowance of his motion to revise or revoke was not properly before the single justice; (2) newly enacted St.1993, c. 432, gave the judge the power to sentence the defendant to less than the statutory minimum sentence; and (3) the firearm carrying statute, G.L. c. 269, § 10(a ), did not preclude house arrest with an electronic monitoring device as a substitute for incarceration in a jail or house of correction.

1. The Commonwealth's remedy. The defendant argues that the Commonwealth's petition under G.L. c. 211, § 3, was not properly before the single justice. The Commonwealth may appeal from the allowance by a Superior Court judge of a motion to revise or revoke under G.L. c. 278, § 28E (1994 ed.). Commonwealth v. Amirault, 415 Mass. 112, 115, 612 N.E.2d 631 (1993). The present case arises from the District Court, and so § 28E provides no appellate remedy for the Commonwealth. See G.L. c. 278, § 28E. Unless we conclude that G.L. c. 211, § 3, affords the Commonwealth relief in these circumstances, we would be left with a procedure permitting Commonwealth appeals where a motion to revise or revoke had been allowed in the Superior Court, but insulating identical District Court action from appellate review. We perceive no reason for such disparate treatment of Superior Court and District Court decisions on the same issues. Furthermore "the public has a right to expect the Supreme Judicial Court to correct any abuse of judicial power, if not under the statute, G.L. c. 278, § 28E, then at least under its superintendence powers. See G.L. c. 211, § 3." Commonwealth v. Amirault, supra at 115 n. 4, 612 N.E.2d 631. It is well within this court's general superintendence power to correct a sentence that has been imposed contrary to law. See Commonwealth v. Gaulden, 383 Mass. 543, 545, 550, 420 N.E.2d 905 (1981); Commonwealth v. McCarthy, 375 Mass. 409, 415 n. 6, 378 N.E.2d 429 (1978).

2. Applicability of St.1993, c. 432, § 3(e). As we explained in Commonwealth v. Russo, 421 Mass. 317, 319, 656 N.E.2d 904 (1995), the judge did not have the discretion under St.1993, c. 432, § 3(e ), e ), to impose less than the mandatory minimum sentence until the sentencing guidelines required by that statute have been promulgated. ²

3. The mandatory sentence. The defendant argues that, with no reference to Commonwealth v. Russo, supra, we should reinstate the judge's order because house arrest with an electronic monitoring device is sufficiently like a house of correction sentence to be an alternative under the statute.

The Commonwealth argues that the order permitting house arrest with an electronic monitoring device is an illegal sentence, i.e., one that is not permitted by law for the offense committed. Commonwealth v. McGuinness, 421 Mass. 472, 475, 658 N.E.2d 150 (1995). See Reporters' Notes to Mass.R.Crim.P. 30(a), Mass.Ann.Laws, Rules of Criminal Procedure at 482-483 (Law.Co-op.1979). We agree.

The firearm carrying statute at issue here mandates that the offender be incarcerated in a "jail or house of correction " for a minimum of one year (emphasis added). G.L. c. 269, § 10(a ). ³ A defendant convicted under the statute is not eligible for parole, probation, furlough, or good time deductions from his sentence. Id.

The general rule of statutory interpretation is that "a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." McNeil v. Commissioner of Correction, 417 Mass. 818, 821-822, 633 N.E.2d 399 (1994), quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513, 333 N.E.2d 450 (1975).

The purpose of the mandatory minimum sentence imposed by G.L. c. 269, § 10(a ), is deterrence. Commonwealth v. Jackson, 369 Mass. 904, 908, 344 N.E.2d 166 (1976). As such, it is harsh, yet clear. The "statutory language itself is the principal source of insight into the legislative purpose." McNeil v. Commissioner of Correction, supra at 822, 633 N.E.2d 399, quoting Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977).

The statute does not permit a sentence of house arrest with an electronic monitoring device to be substituted for incarceration in a "jail or house of correction." The phrase "jail or house of correction" is not ambiguous. Imprisonment in a house of correction means being housed in a "place for...