Commonwealth v. Fernandes

• Decision Date: 30 December 1999
• Citation: 430 Mass. 517,722 NE 2d 406
• Parties: COMMONWEALTH v. DELFINO M. FERNANDES (and five consolidated cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 517

722 NE 2d 406

COMMONWEALTH v. DELFINO M. FERNANDES (and five consolidated cases¹).

Supreme Judicial Court of Massachusetts, Hampden, Plymouth.

November 1, 1999.

December 30, 1999.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, & COWIN, JJ.

Brownlow M. Speer, Committee for Public Counsel Services (Benjamin Keehn & Patricia A. O'Neill, Committee for Public Counsel Services), for the defendants. Mary E. Mullaney & Deborah Ahlstrom, Assistant District Attorneys, for the Commonwealth.

COWIN, J.

We granted the defendants' applications for further appellate review to consider the validity of indictments charging them as repeat offenders under G. L. c. 94C, § 32A (d).² In Commonwealth v. Fernandes, 46 Mass. App. Ct. 455 (1999), the Appeals Court affirmed the rulings of a Superior Court judge that the repeat-offender indictments against Delfino M. Fernandes and Janette Johnson were legally sufficient to describe the offense and inform the accused of the nature of the crime charged. The Appeals Court issued summary orders affirming the convictions of the other four defendants who raised the identical claim decided in Fernandes. See 46 Mass. App. Ct. 1117, 1118 (1999). We consolidated these six cases, five from Plymouth County and one from Hampden County all of which present this same issue.³ We conclude that the repeat-offender portions of the indictments are sufficient.

The defendants (Fernandes, Gray, Ingram, Johnson, Martinez, and Moses) were each indicted and convicted of distributing cocaine in violation of G. L. c. 94C, § 32A (c).⁴ They were also charged and found to have committed a similar prior offense, subjecting them to a mandatory minimum sentence under the sentencing enhancement provisions of G. L. c. 94C, § 32A (d).⁵

On appeal, the defendants all challenge the sufficiency of that portion of the indictments charging them as repeat offenders; however, not all the defendants raised this issue at trial. Only Gray and Moses moved to dismiss the repeat-offender charge in the Superior Court. Their motions were denied. Martinez filed various discovery motions including a motion for a bill of particulars. The Commonwealth provided discovery responses. Fernandes, Ingram, Johnson, and Martinez have challenged the sufficiency of the prior offense indictment on appeal.⁶

The portion of the indictments charging the defendants as repeat offenders varies slightly. The indictments may be divided into three categories. The first category of indictments consists of an indictment with two counts, with each count on a separate sheet of paper, and with one indictment number.⁷ The captions for both the prior and current offense are set forth in the heading of the first count; the first count states at the bottom: "(See COUNT B)"; the caption of the prior offense is repeated in the second count (count B); and the second count charges the defendant with "having been previously convicted of a similar offense," in the body of the second count. See Appendix A. The second category of indictments contains the caption for the prior offense only in the second count of the indictment; states within the first count "(See COUNT B)"; and repeats the statutory language of G. L. c. 94C, § 32 A (d), in the body of count B.⁸ See Appendix B. The third category charges the subsequent and prior offenses in one count and tracks the statutory language of G. L. c. 94C, § 32A (d), in the body of the indictment.⁹ See Appendix C. It is the content of the repeat-offender indictments that is at issue in these cases.

The defendants claim that these repeat-offender indictments are deficient because they do not comport with the requirements of art. 12 of the Massachusetts Declaration of Rights that provides [n]o subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him...." In order to comply with the constitutional mandate, an indictment must contain "a plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof." Mass. R. Crim. P. 4 (a), 378 Mass. 849 (1979). A complaint or indictment will not be dismissed, however, "if the offense is charged with sufficient clarity to show a violation of law and to permit the defendant to know the nature of the accusation against him." Commonwealth v. Green, 399 Mass. 565, 566 (1987), citing Commonwealth v. Welansky, 316 Mass. 383, 395-396 (1944). "It is not necessary for the Commonwealth to set forth in the complaint or indictment every element of the crime to withstand a motion to dismiss." Commonwealth v. Green, supra.

The defendants raise two issues regarding the sufficiency of the repeat-offender counts of the indictments: (1) whether the repeat-offender counts of the indictments are adequate, despite the fact that they do not contain the particulars of the current offense¹⁰; and (2) whether the indictments fail to identify with specificity the prior crime of which the defendant had been convicted.

Subsequent to the decisions in these cases by the Appeals Court, we held that the repeat-offender provisions of the drug statute do not identify a freestanding crime. Rather they concern "solely the sentence of a person convicted of a [current] violation... who has previously been convicted of at least one similar drug offense. The prior offense is not an element of the crime for which a defendant is charged but concerns the punishment to be imposed if he is convicted ... [of the current offense] and the prior offense is proved." (Footnote omitted.) Bynum v. Commonwealth, 429 Mass. 705, 708-709 (1999).¹¹

The holding in Bynum is dispositive of the first issue. If the repeat-offender statutes are sentence enhancement provisions only and do not identify a freestanding crime, it is not necessary that the second offense indictment meet the requirements of an indictment that charges a separate crime. The crime has been set forth in count A; count B simply notifies the defendant of a sentence enhancement. Thus, the counts for the current offense and for the repeat offense are viewed as parts of one indictment and charge only one crime with a sentence enhancement provision. "[A] valid indictment need not notify the defendant of the sentencing possibilities to which he is exposed except in a general way." Commonwealth v. Cantres, 405 Mass. 238, 241 (1989), citing Commonwealth v. Soule, 6 Mass. App. Ct. 973, 973-974 (1979).

The second issue raised by the defendants is whether the repeat-offender counts of the indictments,¹² were defective for failing to describe with particularity the prior convictions on which the repeat-offender charge was based. The question to be decided here is with what specificity the prior offense must be described in the indictment.¹³

The indictment against Gray, in less than a complete sentence, refers to the defendant as "having been previously convicted of a similar offense." The indictment against Moses basically tracks the statutory language stating in sum that the defendant had previously been convicted of a prior distribution offense.

The Commonwealth maintains that this language is legally sufficient as there is a mechanism by which the defendant may obtain the further specifics that are needed before trial, i.e., a request for a bill of particulars. The defendants contend that the indictments are deficient and must contain further specifics regarding the prior offenses.

In Wilde v. Commonwealth, 2 Met. 408 (1841), we set forth the standard to determine whether an indictment or an information imposing on a defendant a sentence enhancement for a prior conviction meets minimum constitutional requirements. We held that the indictment must set forth the prior convictions "with such particularity as to identify [the previous conviction], and indicate the nature and character of the offence charged, and to set forth the sentence or judgment, with so much exactness, as to show that it ... brings the convict within the law providing for additional punishment." Id. at 410. The form of the indictments before us adequately notifies the defendants of the jeopardy they face. The wording of the indictments is consistent with the objective of Wilde, which is to be certain that the defendant understands that the Commonwealth alleges the existence of a prior conviction that may subject the defendant to enhanced punishment.

The indictments before us either track the statutory language of the enhanced sentencing provision or charge the defendants with having committed offenses similar to the underlying offenses. All the indictments make the defendants aware of the nature and character of the prior convictions. The statutory language of the enhanced sentencing provision concerns the fact that the defendant had been convicted of a prior crime of "manufacturing, distributing or dispensing a controlled substance." G. L. c. 94C, § 32A (d). This language included in the indictment places a defendant on notice that the prior conviction was in the nature of a drug conviction. Those defendants charged with having committed "a similar offense" need only look to count A of the indictment to understand the nature of the charge. As we noted, a repeat-offender charge and the underlying offense are not separate crimes. Thus, the repeat-offender portion of the indictment cannot be read in isolation. When the two counts are read together, it is apparent that the repeat-offender "similar offense" language refers to a drug offense similar to the offense that constitutes the underlying charge. The defendant is on notice that the repeat-offender charge is similar in nature to the drug offense charge.

Commonwealth v. Harrington, 130 Mass. 35 (1880), is not to the contrary. There, an indictment failed entirely to set forth the prior conviction. Article 12 requires some statement regarding the prior conviction before a defendant can be subjected to an...