Commonwealth v. Perez

• Citation: 172 N.E.3d 420,100 Mass.App.Ct. 7
• Decision Date: 09 July 2021
• Docket Number: No. 19-P-1672,19-P-1672
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. Franky PEREZ.

100 Mass.App.Ct. 7
172 N.E.3d 420

COMMONWEALTH
v.
Franky PEREZ.

No. 19-P-1672

Appeals Court of Massachusetts, Worcester.

Argued April 5, 2021.
Decided July 9, 2021.

Paul C. Brennan, Winchester, for the defendant.

Michelle R. King, Assistant District Attorney, for the Commonwealth.

Present: Ditkoff, Singh, & Englander, JJ.

ENGLANDER, J.

The Massachusetts version of the armed career criminal act (ACCA), G. L. c. 269, § 10G, provides for enhanced sentences for certain firearm offenses, where the Commonwealth also shows that the defendant has been "previously convicted of" one or more "violent crime[s]." Recently, in Commonwealth v. Ashford, 486 Mass. 450, 457, 159 N.E.3d 125 (2020), the Supreme Judicial Court held that a conviction of assault and battery by means of a dangerous weapon that is based on reckless, rather than intentional conduct, does not qualify as a "violent crime" under our ACCA. Here we consider what proof will suffice, in light of Ashford, to show that a prior conviction of assault and battery qualifies as a violent crime, particularly in the context where the defendant pleaded guilty to the prior offense.

In this case the Commonwealth sought to prove that the defendant was "convicted of" five prior violent crimes (all variants of assault and battery or assault) by having the previous victims or witnesses testify, at

172 N.E.3d 424

the ACCA portion of the trial, to their memory of what the defendant had done (in some instances twenty years earlier). G. L. c. 269, § 10G (c ). With respect to several of the crimes the testimony described conduct that could have been found to be either intentional or reckless. The Commonwealth introduced no evidence regarding any of the plea hearings, and thus no evidence as to what facts were presented or agreed to in connection with the pleas. The judge found that the defendant had committed four prior violent crimes (of the five alleged), and sentenced him to the mandatory minimum of fifteen years in prison, as an armed career criminal with a level three enhancement. See G. L. c. 269, § 10G (c ). We hold that the Commonwealth's evidence as to two of the prior convictions -- both of which involved guilty pleas -- was insufficient as a matter of law. Discerning no error in the convictions of the more recent firearm offenses, we remand for resentencing.¹

Background. 1. The firearm offenses trial. The underlying firearm offenses stem from an event on February 23, 2014. At about 1:50 A.M. on that date, a crowd of patrons was exiting the El Rincon bar and restaurant in Worcester when a member of the crowd produced a handgun and fired several shots into the air. Worcester police officers responded to the scene and interviewed members of the crowd. One witness, a photographer who had been hired to take photographs at the bar that night, reported that the shooter was a man with long dreadlocks, and showed the officers three photographs that he had taken of the shooter earlier that night at the bar. A second witness gave a description of the shooter that was similar to the photographer's, and later that evening identified the defendant in a showup identification.

The defendant was indicted for unlawful possession of a firearm, G. L. c. 269, § 10 (a ), as an armed career criminal, G. L. c. 269, § 10G (c ) ; unlawful possession of ammunition, G. L. c. 269, § 10 (h ) (1), as an armed career criminal, G. L. c. 269, § 10G (c ) ; and discharging a firearm within 500 feet of a building, G. L. c. 269, § 12E. The case went to trial in June of 2017, and the firearm charges were first tried to a jury,² which returned guilty verdicts for possession of a firearm, possession of ammunition, and discharging a firearm within 500 feet of a building.

2. The armed career criminal trial. After the convictions of the firearm offenses, the case moved to the ACCA phase, which was tried jury waived. The Commonwealth presented evidence of five prior offenses that it claimed met the "violent crime" standard, four involving a guilty plea and the fifth a bench trial. G. L. c. 269, § 10G (c ). As to each the Commonwealth presented a police officer witness to prove the nature of the offenses. In all but one instance the police officer was also a victim of the crime. As noted, no evidence was submitted regarding any of the plea hearings. There were no transcripts, and no testimony as to what was said at the hearings.

After hearing the witnesses, the judge found beyond a reasonable doubt that four of the five crimes met the criteria of G. L. c. 269, § 10G, for an armed career criminal

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enhancement. The evidence as to those crimes is summarized here:

a. 1995 assault and battery on a police officer. In 1995 the defendant pleaded guilty to assault and battery on a police officer, as a result of an incident where he elbowed an officer in the nose while resisting arrest. At the ACCA trial, the Worcester police officer involved testified that he had attempted to stop the defendant following a suspected drug deal. The defendant did not stop, prompting the officer to grab the defendant by the arm. The officer testified that:

"[The defendant] continued to move away. He flailed his arms, telling me to get off him .... That's when he flailed -- swung his arm backwards and hit me in the nose[,] ... he moved his elbow straight back into my face."

The blow temporarily stunned the officer, but he eventually restrained the defendant.

b. 1998 assault and battery by means of a dangerous weapon -- a door. In 1998 the defendant pleaded guilty to two counts of assault and battery by means of a dangerous weapon (a door) after shutting a door on two police officers, while resisting arrest. At the ACCA trial a different officer of the Worcester Police Department testified that he had responded to a residence regarding a noise complaint involving loud music. The officer testified that he was met at the doorway by the defendant, who was hostile to the officers and "took his chest and put it against my chest, pushing me back." When the defendant was informed that he was under arrest,

"[h]e started flailing his arms and forced his way back into the apartment.... He was flailing his arms, trying not to allow us to place cuffs on him. He was kicking us back and kicking us at the lower part of our legs ... multiple times. He was just trying to ... [avoid] getting arrested.... [The other officer] was trying to ... grab his arm. That's when he struck [the other officer] with the door.... He grabbed the door, trying to slam it shut so that we couldn't put him under arrest."³

Additional officers responded and the defendant was subdued.

c. 2000 assault by means of a dangerous weapon -- motor vehicle. In 2000 the defendant pleaded guilty to assault by means of a dangerous weapon after nearly hitting an officer with his automobile. At the ACCA trial Massachusetts State Trooper Sean Murphy, who had been a Southbridge Police Officer at the time of the event, testified that he had been working a traffic detail at a construction site with two other officers. Murphy observed the defendant driving an automobile, and remarked to the other officers that he believed the defendant to have a suspended driver's license. The officers attempted to flag down the defendant, but the defendant attempted to drive away, coming very close to one of the officers in the process. Trooper Murphy testified:

"I saw [the defendant's automobile] swerve towards the deputy, and [the deputy] made the basic maneuver to get out of the way, and the vehicle continued.... [The deputy had to] [m]ove out of the way.... [The vehicle got] [v]ery close [to the deputy] ... within two to three feet."

With the help of additional officers, the defendant was located in an apartment a short distance away and arrested.

d. 2000 assault by means of a dangerous weapon -- firearm. Finally, in 2000 the

172 N.E.3d 426

defendant was convicted of assault by means of a dangerous weapon after a bench trial. Following a report of shots fired in the Great Brook Valley neighborhood in Worcester, yet another Worcester Police Officer responded to the scene and spoke to a witness who had seen the shooter, as well as the vehicle the shooter had fled in. The vehicle and the defendant were located nearby, and the defendant was then brought back to the scene, where the witness identified him as the shooter. The officer testified at the ACCA trial that "a couple of shell casings" were recovered, and that two vehicles at the scene had been damaged and bore punctures consistent with bullet holes.

Having found four qualifying predicate offenses, the judge sentenced the defendant to the mandatory minimum terms of fifteen years under G. L. c. 269, § 10G (c ). This appeal followed.

Discussion. 1. The defendant's enhanced sentences under the ACCA. General Laws c. 269, § 10G, provides a staircase of mandatory minimum and maximum enhanced punishments for certain weapons-related offenses, if a defendant has been "previously convicted of [one or more] violent crime[s] or ... serious drug offense[s] ... arising from separate incidences." Commonwealth v. Wentworth, 482 Mass. 664, 670, 128 N.E.3d 14 (2019). Here we are concerned only with the "violent...