Commonwealth v. Garvey

• Decision Date: 09 May 2017
• Docket Number: SJC-12110
• Citation: 477 Mass. 59,76 N.E.3d 987
• Parties: COMMONWEALTH v. James GARVEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

477 Mass. 59

76 N.E.3d 987

COMMONWEALTH

v.James GARVEY.

SJC-12110

Supreme Judicial Court of Massachusetts, Suffolk..

Argued December 8, 2016

Decided May 9, 2017

Zachary Hillman , Assistant District Attorney ( Kathleen Celio , Assistant District

Attorney, also present) for the Commonwealth.

Robert A. O'Meara ( Joseph M. Perullo , Revere, also present) for the defendant.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.¹

BUDD, J.

This case requires us to interpret G. L. c. 279, § 25 (a ), one provision in the habitual criminal statute, G. L. c. 279, § 25. Section 25 (a ) provides for an enhanced penalty where a defendant has two prior convictions resulting in State or Federal prison sentences of three years or more (qualifying sentences). We conclude that § 25 (a ) requires that the underlying convictions arise from separate incidents or episodes of criminal behavior. We also conclude that, in this case, the Commonwealth failed to provide the grand jury with sufficient evidence to support the habitual offender portions of the indictments. We therefore affirm the order dismissing the habitual offender portions of the indictments currently pending against the defendant.

Background . The defendant, James Garvey, was indicted on charges alleging violations of the controlled substances law, G. L. c. 94C. After returning eight indictments relating to the charged drug crimes, the grand jury received evidence concerning the defendant's prior convictions, which the prosecutor introduced to establish probable cause for enhanced penalties to be available in relation to these drug offenses. In particular, the grand jury heard that on March 13, 2002, the defendant was convicted of four offenses, each described in a separate count of a single indictment, and was sentenced to at least three years in State prison on each offense. The offenses were (1) kidnapping, (2) receiving stolen property, (3) possession of a firearm with an obliterated serial number, and (4) unlawful possession of a firearm. The grand jurors did not, however, hear any evidence as to when these offenses occurred.² The grand jury also heard that on December 5, 2002, the defendant was convicted of distribution of a class B substance and conspiracy to violate the controlled substance act, but they did not hear any testimony related to sentencing on those offenses.

Based on the evidence presented relating to the alleged current drug offenses and the prior convictions, the grand jury ultimately voted to indict the defendant for trafficking in 200 grams or more of oxycodone and hydromorphone, G. L. c. 94C, § 32E (c ) (4) ; trafficking in thirty-six grams or more of morphine, G. L. c. 94C, § 32E (c ) (2) ; five counts of possession of a class B substance with the intent to distribute, G. L. c. 94C, § 32A (a ), each as a subsequent offender, G. L. c. 94C, § 32A (b ) ; and possession of a class E substance with the intent to distribute, G. L. c. 94C, § 32D (a ), as a subsequent offender, G. L. c. 94C, § 32D (b ). Each charge also carried habitual criminal and school zone enhancements.

See G. L. c. 279, § 25 ; G. L. c. 94C, § 32J.

The defendant moved to dismiss the habitual offender portions of the indictments, arguing that the grand jury heard no evidence that his four underlying 2002 convictions arose from different criminal episodes. A Superior Court judge allowed the motion in a margin endorsement, writing that "to be a [ ] habitual offender, one must have at least two prior convictions with qualifying sentences resulting from separate, prior criminal episodes" (emphasis in original; quotation omitted). The Commonwealth appealed from the judge's order. See G. L. c. 278, § 28E ; Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass. 1501 (1996). We transferred the case from the Appeals Court on our own motion.

Discussion . Section 25 (a ) requires a judge to sentence a person found guilty of the underlying felony to the maximum penalty prescribed by law for that felony, where that person has at least two prior convictions with qualifying sentences. See Commonwealth v. Luckern , 87 Mass.App.Ct. 269, 269–270, 28 N.E.3d 7 (2015). In reviewing the judge's decision to dismiss the habitual offender portions of the indictments pending against the defendant, our task is to interpret the meaning of this statute. We address that question first, before considering whether the Commonwealth presented adequate facts to enable the grand jury to make a probable cause determination.

1. Statutory interpretation . We review questions of statutory interpretation de novo. Commonwealth v. Martin , 476 Mass. 72, 75, 63 N.E.3d 1107 (2016). General Laws c. 279, § 25 (a ), as amended by St. 2012, c. 192, § 47, provides:

"Whoever is convicted of a felony and has been previously twice convicted and sentenced to state prison or state correctional facility or a federal corrections facility for a term not less than [three] years ... shall be considered a habitual criminal and shall be punished ... for such felony for the maximum term provided by law."

To determine the Legislature's intent, we look to the words of the statute, "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." Boston Police Patrolmen's Ass'n v. Boston , 435 Mass. 718, 720, 761 N.E.2d 479 (2002), and cases cited. "We derive the words' usual and accepted meaning from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions." Commonwealth v. Campbell , 415 Mass. 697, 700, 616 N.E.2d 430 (1993), quoting Commonwealth v. Zone Book, Inc ., 372 Mass. 366, 369, 361 N.E.2d 1239 (1977). Where the statutory language is clear and unambiguous, our inquiry ends. Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester , 446 Mass. 123, 124, 842 N.E.2d 926 (2006).

Both the Commonwealth and the defendant contend that the statute is unambiguous, but each interprets it differently. The Commonwealth argues that the plain meaning of the statute requires simply that a defendant have two prior convictions with qualifying sentences in order to be considered a habitual criminal, regardless of whether those convictions stem from the same or different episodes. The defendant, on the other hand, contends that the statute's plain meaning includes a separate-episode element because of the Legislature's use of the word "habitual," in the text of the statute. His argument is that a "habit" is generally defined as "a settled tendency of behavior" or "a behavior pattern acquired by frequent repetition," Webster's Third New Int'l Dictionary 1017 (2002), and that, therefore, a habitual criminal is someone who has committed a certain number of criminal acts on separate occasions.

We do not find § 25 (a )'s meaning, at least in relation to the issue whether the necessary two prior convictions must relate to different criminal incidents, to be as clear and obvious as the Commonwealth and the defendant do. Accordingly, we look to the history of the statute and our past decisions interpreting it, as well as to the rest of the statutory scheme, for guidance.³ See Commonwealth v. St. Louis , 473 Mass. 350, 355, 42 N.E.3d 601 (2015) ; Commonwealth v. Galvin , 388 Mass. 326, 329, 446 N.E.2d 391 (1983). See also Commonwealth v. Hamilton , 459 Mass. 422, 433, 945 N.E.2d 877 (2011) ("we turn to the history of the statute" where there is "lack of clarity").

a. History of § 25 ( a ) . The Legislature developed a series of incarnations of repeat offender statutes, beginning in 1818, before enacting what is now § 25 (a ). Contrary to the Commonwealth's assertion, the full statutory history of the habitual criminal statute demonstrates that the requirement of separate criminal episodes has been a crucial assumption underlying the statute's development.

Earlier statutes, including those cited by the Commonwealth, provided for an enhanced penalty upon a second conviction, with further aggravation upon a third. See St. 1817, c. 176, §§ 5–6; St. 1827, c. 118, §§ 19–20; St. 1832, c. 73, § 1; St. 1833, c. 85, §§ 1–2; St. 1836, c. 4, §§ 17, 20–22; St. 1843, c. 80. Although there were slight variations among these statutes,⁴ the constant concept throughout was the Legislature's focus on separate prior incidents. In 1853, the Legislature repealed the statute. St. 1853, c. 375. In 1887, the Legislature enacted the earliest version of the modern statute. In doing so, it chose to omit the requirements that there be discharges between the commission and conviction of each prior crime, and also to omit an enhanced penalty for second convictions, leaving enhanced penalties only for those criminals who were convicted a third time. See St. 1887, c. 435, § 1, in amended form at G. L. c. 279, § 25 (a ). See also Commonwealth v. Richardson , 175 Mass. 202, 208, 55 N.E. 988 (1900). When it took these steps, the Legislature added the phrase "habitual criminal" to the statute. Id . at 202–203, 55 N.E. 988. Against the backdrop of the earlier statutes, with their clear focus on separate and distinct convictions, we understand these changes as showing that the Legislature sought to provide again for additional punishment for those criminals who had prior convictions for separate incidents; the intended effect was to limit these additional penalties to those facing a felony conviction after two previous convictions from separate incidents.

This construction of § 25 (a ) aligns with earlier decisions interpreting the statute and its prior incarnations. In these prior cases, although the issue has not been directly raised, we and the Appeals Court have assumed that § 25 (a ) requires that the underlying convictions be for "separate" or "distinct" criminal acts committed on different occasions. In Richardson , 175 Mass. at 208, 55 N.E. 988, ...