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14-P-43                                                   Appeals Court

                COMMONWEALTH     vs.   JEFFREY LUCKERN.


                               No. 14-P-43.

          Suffolk.       December 8, 2014. - April 8, 2015.

              Present:   Rubin, Milkey, & Carhart, JJ.


          Habitual Offender.    Practice, Criminal, Sentence.



     Indictments found and returned in the Superior Court
Department on May 7, 2013.

    A motion to dismiss was heard by Carol S. Ball, J.


     Zachary Hillman, Assistant District Attorney (Gretchen P.
Sherwood, Assistant District Attorney, with him) for the
Commonwealth.
     David M. Skeels, Committee for Public Counsel Services, for
the defendant.


    RUBIN, J.    This case concerns the meaning of a provision of

the habitual offender statute, G. L. c. 279, § 25(a), amended by

St. 2012, c. 192, § 47.     The question before us is whether a

defendant given a sentence of three years or more in State

prison that is suspended so that the defendant must serve less
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than three years has been "sentenced to state prison or state

correctional facility or a federal corrections facility for a

term not less than [three] years."

    The prior version of the habitual offender statute applied

to those who had "been twice convicted of crime and sentenced

and committed to prison in this or another state . . . for terms

of not less than three years each."    G. L. c. 279, § 25, amended

by St. 1904, c. 303.   The statute was amended in 2012 so that it

now applies to anyone convicted of a felony who "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 by the commonwealth,

another state or the United States."   G. L. c. 279, § 25(a).

Although the wording has changed slightly, we agree with the

parties that there is no material difference between the

language in the new version of the statute, which refers to

being sentenced for a term of not less than three years, and

that in the old statute.   Consequently, although the statute has

been amended to remove the reference to "commitment," the

language of the current version with respect to being sentenced

must be read in pari materia with that in the prior version.

    The question before us is whether the defendant has two

prior convictions that may serve as predicate convictions for

application of the habitual offender statute.   The defendant
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pleaded guilty to larceny over $250 in Middlesex County in 1995.

He was sentenced to a so-called split sentence:   three to four

years in State prison, six months to be served, with the rest of

the sentence suspended for four years under certain conditions.1

The defendant also pleaded guilty to burglary in New Hampshire

in 1984, and was sentenced under a procedure that is unfamiliar

in the Commonwealth.   The defendant was originally sentenced to

three and one-half to seven years in New Hampshire State prison

on this conviction, with the judge's order stating that after

one year, if the defendant had been participating in a drug

abuse program and submitting to random screening, and had

received recommendations from both the warden and the

alcohol/drug counselor, he might "apply for review of this

sentence and for transfer to and treatment in a long-term

residential drug treatment facility."   After serving one year

and eleven months of his sentence the defendant moved for


     1
       Such State prison sentences may no longer be given in
Massachusetts. Since the adoption of "truth in sentencing"
twenty years ago Massachusetts judges can no longer order
suspended sentences of incarceration in State prison (in
contrast to sentences in houses of correction). Commonwealth v.
Wilcox, 446 Mass. 61, 65 n.8 (2006) ("the authority to suspend a
sentence of incarceration in a State prison, as opposed to a
house of correction, has been eliminated by G. L. c. 127, § 133,
as appearing in St. 1993, c. 432, § 11 [Truth-in-Sentencing
Act]"). The defendant committed the underlying larceny,
however, prior to the adoption of the truth-in-sentencing
statute, and there is no dispute whether he was properly
sentenced.
                                                                      4


reconsideration and the same judge granted his motion.    His

sentence was suspended and conditions were imposed on that

suspension.   It is clear that this was a reconsideration of the

defendant's original sentence.   The judge's order did not refer

to the time the defendant had served, nor did it refer to the

suspension of merely "a balance" of the sentence.   The defendant

appears to argue that the original sentence was vacated, and

that his new sentence should be understood as a completely

suspended sentence of three and one-half to seven years.     We may

assume without deciding that he is correct in his

characterization of the sentence handed down by the New

Hampshire judge and, for purposes of this opinion, will treat it

as a completely suspended sentence.

    In the trial court, the parties argued on the basis that

the prior version of the statute was applicable.    The defendant

argued in his memorandum in support of his motion to dismiss

below that he was never "committed" on his New Hampshire

sentence, and that the New Hampshire conviction therefore could

not serve as a predicate offense under the old version of the

statute.   The Commonwealth argued below only that the

defendant's two prior convictions could serve as predicate

convictions under the old version of the statute.   A judge of

the Superior Court concluded that neither conviction met the

requirements of the statute and dismissed the habitual offender
                                                                      5


charge against the defendant.     The Commonwealth has brought this

appeal.

    In fact, the applicable version of the statute is not the

old version, but the new one:     the defendant's charged conduct

in the indictment at issue occurred in 2013, after the

amendment.     Below, the Commonwealth made no argument under the

new version of the statute, but, notwithstanding the rules of

waiver, in a case like this, regardless whether we are required

to address the applicable version of the statute, to do so is,

at the least, within our discretion.     "[A] court 'need not

render judgment on the basis of a rule of law whose nonexistence

is apparent on the face of things, simply because the parties

agree upon it.'"     United States Natl. Bank v. Independent Ins.

Agents of Am., Inc., 508 U.S. 439, 447 (1993), quoting from

United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J.,

concurring).    The Commonwealth may proceed against the defendant

only under the amended, applicable version of the statute.

Whether he could have been charged under the old version is

irrelevant and any opinion we might render on the question would

be advisory.     Consequently, we analyze the defendant's

convictions under the amended version of the law.     Because the

case presents a pure question of law, we are in as good a

position as the trial judge would be to resolve the matter.
                                                                    6


Thus, rather than remanding for reconsideration under the

amended statute, we turn to the merits.

     On appeal, the defendant no longer contends that he was not

"committed" -– that word has been removed from the statute.

Rather, he argues that he was not "sentenced to state prison or

state correctional facility or a federal corrections facility

for a term not less than [three] years" on either the Middlesex

County conviction or the New Hampshire conviction.2    An appellee,

of course, may seek affirmance on any ground.    See Lopes v.

Commonwealth, 442 Mass. 170, 181 (2004).

     The question we must address is whether one who is given a

suspended sentence of not less than three years –- suspended in

part or in whole at the time of sentencing so that less than

three years will be served –- has been sentenced for such a

term.    We think he has.   As we wrote in Commonwealth v. Perry,

65 Mass. App. Ct. 624, 632 (2006), about the prior version of

the statute, "[r]ead together, the terms of the statute require

that a defendant twice be found guilty (convicted), sentenced to

prison (sentenced), and imprisoned for some period of time

(committed).    See G. L. c. 279, § 25.   Requiring a period of

commitment eliminates from consideration any prior offenses for

     2
      As this   is the only argument put forward by the defendant,
we express no   opinion whether there is any other legal reason a
conviction in   which a defendant is given a suspended sentence
may not serve   as a predicate under the current version of the
statute.
                                                                     7


which an otherwise qualifying prison term is suspended"

(emphasis added).     Put another way, we inferred that commitment

was required by the Legislature precisely because completely

suspended sentences of not less than three years did meet the

statute's requirement of a sentence of that length, and thus

that, in the absence of a requirement of commitment, convictions

in which a defendant received such suspended sentences would

qualify as predicate convictions under the statute.

    The defendant observes that this statement in Perry is

dictum, and he asserts that the language of the statute is on

its face ambiguous.    Consequently, he argues, we should under

the rule of lenity construe the statute to require an actual,

rather than a suspended, sentence of not less than three years.

See Commonwealth v. Constantino, 443 Mass. 521, 525 (2005) ("if

the statutory language could plausibly be found to be ambiguous,

the rule of lenity requires the defendant be given the benefit

of the ambiguity") (citation omitted).

    This argument would have strength if the defendant could

describe a circumstance other than a suspended sentence in which

a defendant could be sentenced to a term of not less than three

years, but not committed.    But he has provided no such example.

In the absence of such a circumstance, the implication of the

requirement of commitment in the prior version of the statute is

that a suspended sentence of not less than three years is a
                                                                   8


"sentence[]" of "not less than [three] years" within the meaning

of the statute.   Consequently, we conclude that the defendant

was "sentenced" to terms that meet the requirements of the

habitual offender statute on each of the two convictions at

issue here.

    The order dismissing the habitual offender charge is

reversed.

                                    So ordered.
