Commonwealth v. Bradley, SJC–11457.

• Decision Date: 21 November 2013
• Docket Number: SJC–11457.
• Citation: 998 N.E.2d 774,466 Mass. 551
• Parties: COMMONWEALTH v. Zachary D. BRADLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

466 Mass. 551

998 N.E.2d 774

COMMONWEALTH

v.Zachary D. BRADLEY.

SJC–11457.

Supreme Judicial Court of Massachusetts,

Berkshire.

Argued Oct. 7, 2013.

Decided Nov. 21, 2013.

Stephen N. Pagnotta, North Adams, for the defendant.

John P. Bosse, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

GANTS, J.

On November 8, 2010, Williamstown police officers executed a search warrant at the defendant's dormitory room and seized a quantity of marijuana. The dormitory room was approximately 700 feet from the Williams College Children's Center, an accredited preschool facility. The defendant was charged by criminal complaint in the District Court with possession of a class D substance (marijuana) with intent to distribute, in violation of G.L. c. 94C, § 32C ( a ), committing this violation within 1,000 feet of a preschool facility, in violation of G.L. c. 94C, § 32J, commonly known as a “ school zone” violation.¹

On August 2, 2012, the Governor signed into law St. 2012, c. 192, entitled “An Act relative to sentencing and improving law enforcement tools” (Crime Bill), which contained an emergency preamble that made it effective on enactment. Section 30 of the Crime Bill amended G.L. c. 94C, § 32J, by reducing the radius of the school zone from 1,000 feet to 300 feet. The defendant moved to dismiss the school zone violation, claiming that § 30 of the Crime Bill applies to all cases alleging a school zone violation that had not been adjudicated before August 2, 2012, and that his alleged violation occurred outside the amended school zone. The judge reported without decision the following question to the Appeals Court:

“Whether [St. 2012, c. 192, § 30], which reduces the radius of the Drug–Free School Zone from 1,000 feet to 300 feet, should be applied retroactively to an offense that occurred prior to the effective date of the amendment, but for which the Defendant had been charged but not adjudicated on the effective date of the amendment?”

We allowed the defendant's application for direct appellate review. We answer “yes” to the reported question and hold that St. 2012, c. 192, § 30, applies to all cases alleging a school zone violation for which a guilty plea had not been accepted or conviction entered as of August 2, 2012, regardless of whether the alleged violation was committed before August 2, 2012.

Discussion. The temporal application of a penal statute is governed by the rule of statutory construction in G.L. c. 4, § 6, Second, which provides in pertinent part that the “repeal of a statute shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, prosecution or proceeding pending at the time of the repeal for an offence committed.” See Commonwealth v. Dotson, 462 Mass. 96, 99, 966 N.E.2d 811 (2012). Because we interpret an amendment of a penal statute to constitute an implicit repeal where “amended sections of a statute are inconsistent with the earlier provisions,” id. at 100, 966 N.E.2d 811, citing Nassar v. Commonwealth, 341 Mass. 584, 589, 171 N.E.2d 157 (1961), and deem a “punishment, penalty or forfeiture” to be “ ‘incurred,’ within the meaning of [G.L. c. 4,] § 6, Second, at the time the offence for which punishment is imposed is committed,” Dotson, supra, quoting Patrick v. Commissioner of Correction, 352 Mass. 666, 669, 227 N.E.2d 348 (1967), “a newly enacted [penal] statute is presumptively prospective.” Commonwealth v. Galvin, 466 Mass. 286, 290, 995 N.E.2d 27 (2013). The consequence of this presumption is to “preserve, even after legislative change of a statute, the liability of an offender to punishment for an earlier act or omission made criminal by the statute repealed in whole or in part.” Dotson, supra at 99–100, 966 N.E.2d 811, quoting Nassar, supra.

This presumption of prospective application, however, is not absolute because the preamble to G.L. c. 4, § 6, declares, “In construing statutes the following rules shall be observed, unless their observance would involve a construction inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute....” The question then is whether the prospective application of § 30 would be “inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute” (emphasis added). We note that, by separating these exceptions to the general presumption of prospective application with the word “or,” the Legislature intended that there be two exceptions, perhaps often related in fact, but separate and distinct in meaning. See Lobisser Bldg. Corp. v. Planning Bd. of Bellingham, 454 Mass. 123, 129, 907 N.E.2d 1102 (2009) (fundamental to statutory construction that word “or” is disjunctive unless context and main purpose of all words require otherwise), citing Bleich v. Maimonides Sch., 447 Mass. 38, 46–47, 849 N.E.2d 185 (2006), and Eastern Mass. St. Ry. v. Massachusetts Bay Transp. Auth., 350 Mass. 340, 343, 214 N.E.2d 889 (1966). See also Casa Loma, Inc. v. Alcoholic Beverages Control Comm'n, 377 Mass. 231, 234, 385 N.E.2d 976 (1979) (“It is a common tenet of statutory construction that, wherever possible, no provision of a legislative enactment should be treated as superfluous”). We have not before distinguished the different meanings of these two exceptions. We do so here.

1. “Inconsistent with the manifest intent of the law-making body.” The presumption of prospective application is “inconsistent with the manifest intent of the law-making body” where there is “a clearly expressed intention” of the Legislature that the new statute apply retroactively. Nassar, 341 Mass. at 590, 171 N.E.2d 157. In ascertaining the intent of the Legislature, we look to “all [the statutory] 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.” Galvin, supra at 290–291, 995 N.E.2d 27, quoting Hanlon v. Rollins, 286 Mass. 444, 447, 190 N.E. 606 (1934). To overcome the presumption of prospective application through this first exception, inferring that the Legislature probably intended retroactive application is not enough; that intent must be “clearly expressed.” See Dotson, 462 Mass. at 101, 966 N.E.2d 811 (“we see no clearly expressed intention by the Legislatureto have the 2009 amendment to G.L. c. 272, § 53, applied retroactively”).

The Legislature may clearly express its intent through the words used in a statute or the inclusion of other retroactive provisions in the statute that would make prospective application of the provision at issue “anomalous, if not absurd.” Galvin, supra at 291, 995 N.E.2d 27. Thus, in Galvin, supra at 286–287, 995 N.E.2d 27, we concluded that the reduction in a mandatory minimum sentence required by § 14 of the Crime Bill for violations of G.L. c. 94C, § 32A ( d ), applied retroactively to a defendant who committed an offense prior to the effective date of the statute but whose conviction and sentencing did not occur until after that effective date. We noted that § 48 of the Crime Bill provided that those persons already serving a mandatory minimum sentence under § 32A ( d ) would be eligible for parole, probation, work release, and deductions in sentence for good conduct. Id. at 287, 995 N.E.2d 27. We concluded that the Legislature's intent to make the reductions in mandatory minimum sentences retroactive under § 14 was manifest because, otherwise, the opportunity for a reduction in sentence under the Crime Bill would be provided to those who had already been sentenced for violations of § 32A ( d ), but not to “the limited class of persons who committed offenses before the amendments but were not convicted and sentenced until after the amendments' effective date.” Id. at 291, 995 N.E.2d 27.

Here, the Legislature did not clearly express an intention that § 30 apply retroactively. There is nothing in the language of § 30 to reflect an intent that the reduced school zone radius apply either retroactively or prospectively; the section is silent as to its temporal application. Nor, in contrast with the Galvin case, are there other provisions in the Crime Bill, such as provisions applying the reduced school zone radius to those already sentenced for a school zone violation, that would make prospective application of § 30 “anomalous, if not absurd.” We also are not persuaded by the defendant's argument that the inclusion of a preamble declaring the Crime Bill “an emergency law” whose “deferred operation ... would tend to defeat its purpose,” suggests a clearly expressed intent that § 30 be applied retroactively. “The inclusion of an emergency preamble demonstrates only that the Legislature intended the statute to take effect without regard for the ninety-day waiting period otherwise provided by art. 48 of the Amendments to the Massachusetts Constitution.” Smith v. Massachusetts Bay Transp. Auth., 462 Mass. 370, 377, 968 N.E.2d 884 (2012). It does not suggest an intent to apply the Crime Bill retroactively. See Federal Nat'l Mtge. Ass'n v. Nunez, 460 Mass. 511, 521, 952 N.E.2d 923 (2011) (“While it is plain that the Legislature wished the new statute to take effect immediately to protect tenants in foreclosed properties from eviction, neither the emergency preamble nor the statutory text demonstrates a clear intent to apply the statute to properties already foreclosed on”).

2. “Repugnant to the context of the same statute.”

Our case law has yet to elaborate on the meaning of the phrase “repugnant to the context of the same statute,” but we can discern its meaning from the words themselves. Black's Law Dictionary 1419 (9th ed. 2009) defines “repugnant” as “[i]nconsistent or irreconcilable with; contrary or contradictory to,” and ...