Com. v. Lemay

• Decision Date: 06 April 1981
• Parties: COMMONWEALTH v. Kevin F. LEMAY.
• Court: Appeals Court of Massachusetts

Page 633

418 N.E.2d 633

11 Mass.App.Ct. 992

COMMONWEALTH v. Kevin F. LEMAY.

Appeals Court of Massachusetts, Suffolk.

Argued March 9, 1981.

Decided April 6, 1981.

Sharon D. Meyers, Asst. Dist. Atty., for the Commonwealth.

Alfred E. Nugent, Boston (John R. McGrath, Boston, with him), for defendant.

Before GRANT, CUTTER and GREANEY, JJ.

RESCRIPT.

The defendant has appealed from the denial of his motion brought pursuant to Mass.R.Crim.P. 30, 378 Mass. --- (1979), which, although labelled as one for a new trial, sought to vacate on the ground of illegality a sentence of not less than five years nor more than seven years in the Massachusetts Correctional Institution at Walpole. The sentence was imposed on October 31, 1977, after the defendant entered a plea of guilty to an indictment charging him under G.L. c. 269, § 10 (as in effect prior to St.1974, c. 649, § 2), with a second offense of unlawfully carrying a firearm. The incident which formed the basis for the indictment occurred on September 16, 1973. The motion was heard and denied on June 19, 1980, by the judge who had imposed the sentence. The questions on appeal are: (1) whether the judge in passing sentence applied the provisions of G.L. c. 269, § 10(d ), for repeat gun law offenders put into effect in 1975 by the so-called Bartley-Fox legislation (see St.1974, c. 649, § 2; St.1975, c. 4, § 2), instead of the provisions of the statute in effect in 1973, when the offense occurred, and (2) if the judge did apply the 1975 statute, whether the defendant is entitled to resentencing. Both statutes provide for a minimum mandatory five-year prison sentence for a second conviction of unlawfully carrying a firearm and both prohibit suspension of that sentence. The statute in effect in 1973, however, did not establish a maximum term and did not prohibit straight probation (G.L. c. 276, § 87) as a possible disposition for a second carrying conviction, whereas the 1975 statute provided for a mandatory maximum of seven years and prohibited the imposition of probation. The defendant acknowledges that under both statutes a second offender must receive a minimum five-year prison sentence and that the sentence cannot be suspended. He argues, however, that, if the judge did rely on the later statute, he was deprived of the judge's "consideration of a probation alternative, when (he) was in fact entitled to that consideration under the plain terms of (G.L. c. 269, § 10) as it existed at the time of his 1973 offense." It is important to note that the defendant does not raise any question with respect to the voluntariness of the plea, nor does he question the adequacy of the representation provided to him by his plea counsel.

In denying the motion, the judge made several express findings, including one that "there is no reason to believe (that) this defendant would have been given a sentence other than what was endorsed on (the gun law indictment) if Bartley-Fox had not been passed." It is by no means...