Com. v. Murphy

• Decision Date: 07 June 1983
• Citation: 451 N.E.2d 95,389 Mass. 316
• Parties: COMMONWEALTH v. Arthur V. MURPHY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 95

451 N.E.2d 95

389 Mass. 316

COMMONWEALTH v. Arthur V. MURPHY.

Supreme Judicial Court of Massachusetts Middlesex.

Argued March 7, 1983.

Decided June 7, 1983.

Pamela L. Hunt, Asst. Dist. Atty., for the Commonwealth.

Mark L. Donahue, Braintree (Richard E. Blumsack, Somerville, with him) for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

WILKINS, Justice.

This appeal by the Commonwealth presents the question whether, in the circumstances, the defendant may constitutionally be subjected to enhanced punishment under G.L. c. 90, § 24(1)(a)(1), as appearing in St. 1982, c. 373, § 2, if he is convicted on a pending complaint charging him with operating a motor vehicle while under the influence of intoxicating liquor. As amended, effective September 1, 1982 (St.1982, c. 373, § 20), G.L. c. 90, § 24(1)(a )(1), material portions of which are quoted in the margin, ¹ provides in its second paragraph that "[i]f the defendant has been previously convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like violation within six years preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished" by a fine and by imprisonment for not less than seven days. It should be noted that imprisonment for at least seven days is mandatory on conviction of a "second offense."

The issue before us is whether the defendant's assignment to an alcohol education program in June, 1978, by a judge in the Concord Division of the District Court Department, in connection with a charge of operating a motor vehicle while under the influence of intoxicating liquor, may constitutionally be the basis for imposing the enhanced penalties prescribed by § 24(1)(a )(1) if he is convicted of the charge now pending against him in the Cambridge Division of the District Court Department alleging that a similar violation occurred on September 19, 1982. We conclude that the increased penalties of § 24(1)(a )(1) properly apply to the defendant if he is convicted of the pending charge. We thus vacate the order of the motion judge in the Cambridge District Court which strikes so much of the pending complaint as alleges a "prior assignment to an alcohol education program" and which directs that the offense be treated as a first offense.

On June 2, 1978, the defendant was charged in the Concord District Court with operating a motor vehicle while under the influence of intoxicating liquor. On June 9, 1978, represented by counsel, he appeared and entered a plea of not guilty. He admitted to sufficient facts to warrant a finding of guilty, however, and a finding of guilty was entered. On June 23, 1978, a judge placed the defendant on probation, assigned him to an alcohol education program, and continued the case for one year. At some time thereafter the defendant completed the education program. On March 9, 1979, the case was advanced; the guilty finding was revoked; a not-guilty finding was entered; and probation was continued. On June 23, 1979, probation was terminated and the defendant was discharged. ²

On September 20, 1982, a complaint was sought in the Cambridge District Court charging the defendant with operating a motor vehicle while under the influence of intoxicating liquor in Arlington on September 19, 1982. The complaint alleges additionally that on or about June 23, 1978, in the Concord District Court the defendant "was given a continuance without a finding on a like offense and on that date was duly assigned to an alcohol program by the court." The defendant moved that the complaint be reduced or amended so as to charge only a first offense. He alleged that it was unconstitutional to consider an offense occurring prior to the effective date of the 1982 amendment of G.L. c. 90, § 24(1)(a )(1), and that the amendment was vague because it did not inform the defendant of his rights. ³ The motion judge allowed that motion on October 20, 1982, and, as indicated above, entered an order consistent with that conclusion. He stated in a notation on the motion that he regarded the prior "offense" as an element of the second offense and concluded that the 1982 amendment could not reach back before its effective date for an element of that offense. He stated further that reliance on offenses committed prior to the enactment (on August 12, 1982) of St. 1982, c. 373, would violate the provisions in the Constitutions of the United States and the Commonwealth prohibiting ex post facto laws.

On November 29, 1982, the judge filed a memorandum, finding, and order on the defendant's motions to strike or amend. He repeated his earlier conclusion that "involvement in an alcohol education program prior to the effective date of the statute cannot constitute an element of a crime created after the original offense." He again referred to ex post facto principles and also relied on due process of law considerations. He said: "As a great social experiment, the alcohol education program practically coerced charged-defendants to enter the program. In most courts there was no loss of driving privileges in the program, where a conviction involved a one-year loss. There were few cases where a charged-defendant risked the severe penalty of loss of driving privileges by trial on the merits. It would seem to be a violation of the fundamental fairness doctrine to now hold the willing participant in the same category as one convicted."

If the defendant had pleaded guilty to, or had been found guilty of, the first offense, he would have no meritorious claim that the subsequently prescribed, enhanced punishment for a future conviction of a like crime violates ex post facto principles expressed in art. 1, § 10, cl. 1, of the Constitution of the United States (applied to the States through the Fourteenth Amendment), and in art. 24 of the Massachusetts Declaration of Rights. Sayles v. Commonwealth, 373 Mass. 856, 367 N.E.2d 833 (1977). Commonwealth v. Graves, 155 Mass. 163, 164-165, 29 N.E. 579 (1892). Ross's Case, 2 Pick. 165, 169-170 (1824). Spencer v. Texas, 385 U.S. 554, 559-560, 87 S.Ct. 648, 651, 17 L.Ed.2d 606 (1967), and cases cited. ⁴ The enhanced punishment is imposed for a subsequent violation; it is not retroactive punishment for the first. The complaint should set forth any former conviction that may be relied on to justify greater punishment on conviction (Commonwealth v. Harrington, 130 Mass. 35, 36 [1880] ), but the prior offenses may not be referred to during the trial, except to impeach the defendant if he testifies (G.L. c. 278, § 11A). The prior offense is not part of the crime charged; it relates only to punishment. McDonald v. Commonwealth, 173 Mass. 322, 326-327, 53 N.E. 874 (1899), judgment aff'd, 180 U.S. 311, 313, 21 S.Ct. 389, 390, 45 L.Ed. 542 (1901). A defendant, if convicted of a charge, will be entitled to a separate trial on the issue whether he had been convicted of a prior, like offense. G.L. c. 278, § 11A.

The circumstances of this case, not involving a prior conviction, are different. The defendant had not been "previously convicted" but, within the meaning of G.L. c. 90, § (1)(a )(1), he had been "assigned to an alcohol education ... program by a court of the commonwealth because of a like violation within six years preceding the date of the [alleged] commission of the offense" for which he has been charged. We conclude that a person who admitted to sufficient facts so as to warrant a finding of guilty and whose case was continued on his assignment to an alcohol education program falls within the class described in the statute. The 1982 amendment intended to reach such a person by treating an assignment to such a program as being "because of a like violation." ⁵

The question is whether there is any constitutional prohibition against applying § 24(1)(a )(1) as it was intended. We turn first to the legislative treatment in recent years of the serious problem of intoxicated drivers on the highways of the Commonwealth. In doing so we shall address the defendant's claim that in 1978 he was virtually compelled to enter the alcohol education program and that it is fundamentally unfair, in a constitutional due process sense, to give effect to his prior participation in such a program in measuring the punishment to be imposed on him if he is convicted of the pending charge.

Under the law in effect at the time the defendant was first charged with operating a motor vehicle while under the influence of intoxicating liquor, and from the effective date of St. 1975, c. 505, §§ 1 and 2, which rewrote G.L. c. 90, §§ 24D and 24E, any individual charged with so operating a motor vehicle could have his case continued without a finding, and, with his consent, he could be placed on probation. As a condition of probation, he had to be assigned to an alcohol education program, but his driver's license did not have to be suspended. See Senate Committee on Post Audit and Oversight, Drinking and Driving in Massachusetts Statutory Options and Recommendations (February, 1982), at 17 (hereinafter referred to as the 1982 Post Audit Committee report). Assignment to an education program, first expressed in a 1974 amendment of G.L. c. 90 by the insertion of §§ 24D and 24E (see St.1974, c. 647, § 1), has been characterized as a "health-legal approach," and was selected as the Commonwealth's principal method of dealing with intoxicated drivers. 1982 Post Audit Committee report, at 17. ⁶

In 1978, the year in which the defendant was first charged with driving while under the influence, 63% of the approximately 21,000 persons arraigned for driving while under the influence of intoxicating liquor had their cases continued without a finding and were referred to an alcohol education program. Research Project, Office of Commissioner of Probation, Driving under the Influence of Liquor: Dispositions and Placements in Drivers...