Commonwealth v. Rodriguez

• Decision Date: 28 May 2019
• Docket Number: SJC-12638
• Parties: COMMONWEALTH v. Alexander RODRIGUEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

482 Mass. 366

122 N.E.3d 1066

COMMONWEALTH

v.Alexander RODRIGUEZ.

SJC-12638

Supreme Judicial Court of Massachusetts, Middlesex..

Argued February 7, 2019.

Decided May 28, 2019.

Steven J. Rappaport, Boston, for the defendant.

Howard P. Blatchford, Jr., Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LENK, J.

The defendant pleaded guilty to possession of a large capacity feeding device, in violation of G. L. c. 269, § 10 (m ), as well as carrying a firearm without a license and related offenses. As relevant here, the defendant was sentenced, over the Commonwealth's objection, to a term of from one to two and one-half years' imprisonment following his conviction under G. L. c. 269, § 10 (m ). In a motion for reconsideration, the Commonwealth sought a sentence of at least two and one-half years. The judge then reported the following question to the Appeals Court:

"May a defendant who has been convicted of possession of a large capacity feeding device, in violation of [ G. L. c. 269, § 10 (m ) ], lawfully be sentenced to State [p]rison for not less than one year nor more than two and one-half years?"

See Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004). We transferred the case to this court on our own motion, and now answer the reported question, "Yes."

1. Background. a. Facts. The indictments arose from an incident in June 2015, in which the defendant brandished a gun at another driver and then drove off before police arrived. Sergeant Marisol Nobrega of the Lowell police department responded to a report of the incident. Based on a general description of the man and the vehicle involved, she located and arrested the defendant. Under a floor mat in the defendant's vehicle, police found a firearm with one round in the chamber and a large capacity (twelve-shot) feeding device attached. The defendant did not have a license to possess a firearm in Massachusetts.

b. Prior proceedings. In December 2015, the defendant was indicted on charges of possession of a large capacity feeding device, G. L. c. 269, § 10 (m ) (count 1); possession of a firearm without a license, G. L. c. 269, § 10 (a ) (count 2); possession of a loaded firearm, G. L. c. 269, § 10 (n ) (count 3); and possession of ammunition without a firearm identification card (FID), G. L. c. 269, § 10 (h ) (count 4). Following his guilty pleas, he was sentenced to a term of from one to two and one-half years in State prison on count 1; eighteen months in a house of correction on count 2, concurrent with count 1; and one day in a house of correction on count 3, from and after the sentence on count 2 and concurrent with count 1. Count 4 was placed on file.

2. Discussion. General Laws c. 269, § 10 (m ), provides, in relevant part:

"[A]ny person not exempted by statute who knowingly has in his possession, or knowingly has under his control in a vehicle, a large capacity weapon or large capacity feeding device therefor who does not possess a valid Class A or Class B license to carry firearms ... shall be punished by imprisonment in a [S]tate prison for not less than two and one-half years nor more than ten years. The possession of a valid firearm identification card issued under [§] 129B shall not be a defense for a violation of this subsection; provided, however, that any such person charged with violating this paragraph and holding a valid firearm identification card shall not be subject to any mandatory minimum sentence imposed by this paragraph. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this subsection be eligible for probation, parole, furlough, work release or receive any deduction from his sentence for good conduct until he shall have served such minimum term of such sentence .... Prosecutions commenced under this subsection shall neither be continued without a finding nor placed on file."

The Superior Court judge who reported this case aptly characterized this imperfect statute as "vexing." The Appeals Court in separate opinions observed that it was "no grammatical paragon," Commonwealth v. Semegen, 72 Mass. App. Ct. 478, 480, 892 N.E.2d 815 (2008), and branded it as "confusing," after having "caused courts some consternation." Commonwealth v. Lindsey, 72 Mass. App. Ct. 485, 493, 893 N.E.2d 52 (2008), cert. denied, 556 U.S. 1183, 129 S.Ct. 2008, 173 L.Ed.2d 1087 (2009). We cannot disagree.

Looking first at the ordinary meaning of the statutory language, Foss v. Commonwealth, 437 Mass. 584, 586, 773 N.E.2d 958 (2002), as we do to discern the Legislature's intent in enacting it, Commonwealth v. Morgan, 476 Mass. 768, 777, 73 N.E.3d 762 (2017), citing Commonwealth v. Peterson, 476 Mass. 163, 167, 65 N.E.3d 1166 (2017), we see that the first provision states that "any person" convicted under it "shall be punished by imprisonment in a [S]tate prison for not less than two and one-half years nor more than ten years." G. L. c. 269, § 10 (m ). The second provision in effect then creates two categories of felon: those who do (FID-card-holding felons) and those who do not hold valid FID cards (non-FID-card-holding felons). Those who do "shall not be subject to any mandatory minimum sentence imposed by this paragraph." Id.

So far so good; if the paragraph ended there, the two provisions might readily be reconciled, as our case law would permit us to view the sentencing range of "not less than two and one-half years nor more than ten years," id., as calling for a mandatory minimum sentence of two and one-half years applicable to "any person" other than a valid FID card holder.¹ See Commonwealth v. Brown, 431 Mass. 772, 776, 730 N.E.2d 297 (2000) ; Commonwealth v. Claudio, 418 Mass. 103, 109, 634 N.E.2d 902 (1994).

Of course, the paragraph has three, not two provisions, the third one bearing yet more of the hallmarks of a mandatory minimum sentence than the first. See Commonwealth v. Jackson, 369 Mass. 904, 905 n.1, 916-920, 344 N.E.2d 166 (1976) (construing language comparable to that in third provision of G. L. c. 269, § 10 [m ], as creating mandatory minimum sentence). See also Commonwealth v. Cowan, 422 Mass. 546, 548-549, 664 N.E.2d 425 (1996). This is the locus of the conundrum. See Commonwealth v. Pon, 469 Mass. 296, 302, 14 N.E.3d 182 (2014) ("Where the words of the statute are ambiguous, we strive to make it an effectual piece of legislation in harmony with common sense and sound reason and consistent with legislative intent" [quotation and citation omitted] ). See also Morgan, 476 Mass. at 777, 73 N.E.3d 762, citing 2A N.J. Singer & S. Singer, Statutes and Statutory Construction § 46:5 (7th ed. rev. 2014) ("We do not confine our interpretation to the words of a single section").

The third provision of G. L. c. 269, § 10 (m ), states that "[t]he sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this subsection be eligible for probation, parole, furlough, work release or receive any deduction from his sentence for good conduct until he shall have served such minimum term of such sentence." "Such person" arguably could mean one of the felons holding FID cards referred to in the second provision, but this would be nonsensical. See G. L. c. 269, § 10 (m ). To the extent that the third provision properly is deemed a mandatory minimum sentence, felons holding FID cards are not subject to such a sentence by virtue of the second provision.² Thus, if the third provision is a mandatory minimum sentence, "such person" refers to "any person," namely, the same non-FID-card-holding felons to whom the first provision also applies. The issue turns on whether the first and third provisions each provide for mandatory minimum sentences, albeit different ones, each applicable to the same non-FID-card-holding felons.

It would be considerably less daunting a task were we to regard either the first or the third provision as not calling for a mandatory minimum sentence, since the clear minimum sentence then would be either two and one-half years or one year. But we have little doubt that both the first and third provisions call for mandatory minimum sentences that are, by virtue of the second provision, applicable only to non-FID-card holders.³ No case of which we are aware has a statute containing both a provision setting out a full sentencing range -- here, a minimum of two and one-half years and maximum of ten years -- as required by G. L. c. 279, § 24, and a subsequent provision requiring a lesser but more stringent sentence to be served, without exception, in prison.⁴ Harmonizing the provisions in a manner that does not make any of the statutory language superfluous, that sees the statute as a whole without internal contradiction, and that renders the legislation consistent with common sense, all as the Legislature intended, is quite the job with this statute. See Commonwealth v. Figueroa, 464 Mass. 365, 368, 982 N.E.2d 1173 (2013), quoting DiFiore v. American Airlines, Inc., 454 Mass. 486, 491, 910 N.E.2d 889 (2009) ("Where possible, we construe the various provisions of a statute in harmony with one another, recognizing that the Legislature did not intend internal contradiction"); Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618, 227 N.E.2d 357 (1967) ("[n]one of the words of a statute is to be regarded as superfluous, but each is to be given its ordinary meaning without overemphasizing its effect upon the other terms appearing in the statute" [citation omitted] ). See also Commonwealth v. Daley, 463 Mass. 620, 623–624, 977 N.E.2d 536 (2012) (rejecting interpretation that would have rendered one word, "with," superfluous); Commonwealth v. Keefner, 461 Mass. 507, 511, 961 N.E.2d 1083 (2012), quoting Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140, 691 N.E.2d 929 (1998) (interpreting statute ...