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SJC-12394

                  COMMONWEALTH   vs.   BRANDON BAEZ.



            Suffolk.    April 5, 2018. - August 23, 2018.

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


Firearms. Delinquent Child. Constitutional Law, Sentence,
     Cruel and unusual punishment. Due Process of Law,
     Sentence. Practice, Criminal, Sentence.



     Indictments found and returned in the Superior Court
Department on June 20, 2016.

     A question of law was reported by Christopher J. Muse, J.,
to the Appeals Court.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Robert F. Hennessy for the defendant.
     John P. Zanini, Assistant District Attorney (Stacey
Pichardo Corson, Assistant District Attorney, also present) for
the Commonwealth.


    CYPHER, J.     This case presents the question whether, in

light of Miller v. Alabama, 567 U.S. 460 (2012), juvenile

delinquency adjudications for violent offenses may serve as
                                                                    2


predicate offenses for adults indicted under G. L. c. 269,

§ 10G, the armed career criminal act (ACCA).1   We conclude that

they may.

     Background.   At age eighteen, the defendant, Brandon Baez,

was indicted for a violation of G. L. c. 269, § 10 (a), unlawful

possession of a firearm.2   If convicted, and if he had no

qualifying convictions for sentence enhancement, he would "be

punished by imprisonment in the state prison for not less than

two and one-half years nor more than five years, or for not less

than [eighteen] months nor more than two and one-half years in a

jail or house of correction."   G. L. c. 269, § 10 (a) (6).

     The defendant had twice been adjudicated delinquent for

crimes of violence as defined by the Legislature; therefore, the

Commonwealth charged the defendant with violating § 10G.3     The

ACCA mandates enhanced sentencing for adults who violate G. L.

c. 269, § 10 (a), (c), or (h), and have "been previously


     1 General Laws c. 269, § 10G, is sometimes referred to in
our decisions and by the bar as the armed career criminal act
(ACCA). We therefore refer to § 10G in this opinion as the
ACCA.

     2 The defendant was also indicted for carrying a loaded
firearm. G. L. c. 269, § 10 (n). That count is not before us.

     3 Both adjudications resulted from the defendant's actions
at age fifteen. He was adjudicated delinquent by reason of
armed assault to rob and assault and battery by means of a
dangerous weapon and was again adjudicated delinquent by reason
of assault by means of a dangerous weapon. The dangerous weapon
in each adjudication was a knife.
                                                                      3


convicted of a violent crime or of a serious drug offense."4

G. L. c. 269, § 10G (a)-(c).   In other circumstances, we have

determined that when the Legislature used the word "conviction"

rather than adjudication, it meant to exclude juvenile

delinquency adjudications.   See generally Commonwealth v. Connor

C., 432 Mass. 635, 646 (2000) ("We adhere to our long-standing

jurisprudence that an 'adjudication' that a child has violated a

law generally is not a 'conviction' of a crime").   Here, the

Legislature imported the definition of "violent crime" from

G. L. c. 140, § 121, which includes "any act of juvenile

delinquency involving the use or possession of a deadly weapon

that would be punishable by imprisonment for such term if

committed by an adult."   See Commonwealth v. Anderson, 461 Mass.

616, 631, cert. denied, 568 U.S. 946 (2012); Commonwealth v.

Furr, 58 Mass. App. Ct. 155, 157-158 (2003).

     The ACCA creates a tiered system of punishment.     Those with

one applicable conviction "shall be punished by imprisonment in

the state prison for not less than three years nor more than

[fifteen] years."   Those with two applicable convictions, such

as the defendant, "shall be punished by imprisonment in the

state prison for not less than ten years nor more than [fifteen]


     4 The Commonwealth is not alleging that the ACCA applies to
the defendant because he was "previously convicted . . . of a
serious drug offense." We therefore do not decide whether the
statute applies to juvenile adjudications for drug offenses.
                                                                      4


years."   Those with three applicable convictions "shall be

punished by imprisonment in the state prison for not less than

[fifteen] years nor more than [twenty] years."    G. L. c. 269,

§ 10G (a)-(c).

     While the defendant's current case was proceeding, a judge

in the Superior Court raised sua sponte the issue whether using

juvenile adjudications to enhance sentencing in the same manner

as adult convictions violated due process rights5 and protections

under the Eighth Amendment to the United States Constitution.

The judge invited the defendant to file a motion to dismiss on

these grounds and reported the following question to the Appeals

Court:    "Whether in light of Miller v. Alabama, [567 U.S. 460

(2012)], a juvenile adjudication may be used as a predicate

offense for enhanced penalties under G. L. c. 269, § 10G."       We

subsequently allowed the defendant's application for direct

appellate review.

     Discussion.    The Eighth Amendment's prohibition against

cruel and unusual punishments and art. 26's comparable ban6

include protections from excessive and disproportionate

sanctions.   See Roper v. Simmons, 543 U.S. 551, 560 (2005);


     5 Although the judge mentioned due process concerns in his
discussion with counsel, he did not raise that issue in the
certified question, so we therefore do not address it.

     6 Article 26 prohibits the infliction of "cruel or unusual
punishments."
                                                                     5


Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.

655, 671 (2013), S.C., 471 Mass. 12 (2015).     A punishment is

unconstitutional if it is so disproportionate that it "shocks

the conscience" (citation omitted).     Diatchenko, supra at 669.

Proportionality concerns are especially acute when evaluating

punishments for juveniles because "children are constitutionally

different from adults for purposes of sentencing."     Miller, 567

U.S. at 471.

       In Miller, 567 U.S. at 479, the United States Supreme Court

held that the Eighth Amendment prohibits mandatory sentences of

life without the possibility of parole for juvenile offenders

convicted of murder.    We applied Miller's holding in Diatchenko,

466 Mass. at 671, and "conclude[d] that the discretionary

imposition of a sentence of life in prison without the

possibility of parole on juveniles who are under the age of

eighteen when they commit murder in the first degree violates

the prohibition against 'cruel or unusual punishment[]' in art.

26."   Miller, Diatchenko, and their progeny are controlling when

evaluating the constitutionality of juvenile sentencing, but

merely inform our understanding of the proportionality of adult

punishment.

       "The essence of proportionality is that 'punishment for

crime should be graduated and proportioned to both the offender

and the offense.'"     Commonwealth v. Perez, 477 Mass. 677, 683
                                                                    6


(2017).   We reached our conclusion in Diatchenko, in part, by

considering the "unique characteristics of juvenile offenders."7

Diatchenko, 466 Mass. at 671.    Here, however, those

characteristics are not relevant8 because the defendant is an

adult.    If convicted, he would not be punished for his juvenile

activity.   He would be punished for violating the law as an

adult while having two applicable juvenile adjudications on his

record.

     Without consideration of a juvenile offender's "diminished

culpability," Miller, 567 U.S. at 471, the analysis of the

proportionality of the punishment to the offense is




     7 "Relying on science, social science, and common sense, the
Supreme Court in Miller pointed to three significant
characteristics differentiating juveniles from adult offenders
for purposes of Eighth Amendment analysis. First, children
demonstrate a '"lack of maturity and an underdeveloped sense of
responsibility," leading to recklessness, impulsivity, and
heedless risk-taking.' Second, children '"are more vulnerable
. . . to negative influences and outside pressures," including
from their family and peers; they have limited "contro[l] over
their own environment"[;] and [they] lack the ability to
extricate themselves from horrific, crime-producing settings.'
Finally, 'a child's character is not as "well formed" as an
adult's; his traits are "less fixed" and his actions less likely
to be evidence of irretrievabl[e] deprav[ity].'" (Citations
omitted.) Diatchenko, 466 Mass. at 660, quoting Miller, 567
U.S. at 471.

     8 Even though these characteristics are not relevant to the
constitutional analysis, if the defendant were to be convicted,
the circumstances surrounding his underlying juvenile
adjudications would be relevant to the judge's determination of
what sentence to impose, as in any sentencing decision.
                                                                     7


straightforward.9   The Commonwealth argues that § 10G's

sentencing scheme considers "the fact that [the defendant] has

not been rehabilitated."    The Commonwealth further notes,

"[m]ore severe sentences are justified by recidivism."     Indeed,

we have said as much when interpreting the ACCA.     See

Commonwealth v. Resende, 474 Mass. 455, 468-469 (2016) (best

interpretation of ACCA is one that "reflects and implements the

principle that penal discipline can have [or should have] a

reforming influence on an offender, with enhanced consequences

if prior convictions and sentences do not have such an effect").

"Recidivism has long been recognized as a legitimate basis for

increased punishment."     Ewing v. California, 538 U.S. 11, 25

(2003).   Specifically, the Commonwealth contends that the

purpose of the ACCA's enhanced sentencing scheme is to achieve

the penological goals of deterrence and incapacitation.       Each is

a justifiable objective of incarceration under the Eighth

Amendment and art. 26.     "[A] second or subsequent offense is

often regarded as more serious because it portends greater


     9 Although not binding on our interpretation of art. 26's
protections or the constitutionality of G. L. c. 269, § 10G,
Federal courts have addressed a similar question and held that
the use of juvenile adjudications to enhance sentences under the
Federal armed career criminal act, 18 U.S.C. § 924(e), does not
violate the Eighth Amendment. See United States v. Orona, 724
F.3d 1297, 1309-1310 (10th Cir.), cert. denied, 571 U.S. 1034
(2013); United States v. Mason, 435 Fed. Appx. 726, 730-731
(10th Cir. 2011); United States v. Jones, 332 F.3d 688, 696 (3d
Cir. 2003), cert. denied, 540 U.S. 1150 (2004).
                                                                   8


future danger and therefore warrants an increased sentence for

purposes of deterrence and incapacitation."   United States v.

Rodriquez, 553 U.S. 377, 385 (2008).   The potential punishment

is therefore constitutionally proportionate to the offender and

the offense.10

     We therefore answer "yes" to the reported question, holding

that qualifying juvenile adjudications may be used as a

predicate offense for enhanced penalties under G. L. c. 269,

§ 10G.

                                   So ordered.




     10When evaluating Eighth Amendment and art. 26 claims, we
also compare the challenged punishment with penalties imposed
for more serious crimes within the Commonwealth, and assess
whether the challenged punishment is comparable to penalties
imposed for the same offense in other jurisdictions.
Commonwealth v. Perez, 477 Mass. 677, 684 (2017). However, the
reported question asks about the application of Miller, which is
relevant only to the nature of the offender. To opine further
would be to analyze unnecessarily the ACCA's constitutionality.
See Commonwealth v. Vega, 449 Mass. 227, 234 (2007).
     GANTS, C.J. (concurring, with whom Lenk and Budd, JJ.,

join).   I agree with the court that it is not unconstitutional

to use the adult defendant's two juvenile adjudications for

separate "violent crime[s]," as defined in G. L. c. 140, § 121,

as predicate offenses for enhanced sentences under G. L. c. 269,

§ 10G (b).   I write separately to encourage the Legislature to

consider the wisdom and fairness of the mandatory minimum aspect

of those enhanced sentences, especially where the predicate

offenses were committed when the defendant was a juvenile.

     First, although the court here, as in other cases,1 refers

to § 10G as "the armed career criminal act" or as applying to

"armed career criminals," the statute does not contain these

words, and the Legislature never gave the statute that name.

See St. 1998, c. 180, § 71.    And that is for good reason,

because many, perhaps most, defendants given enhanced sentences

under the provisions of § 10G cannot reasonably be characterized

as armed career criminals.    "The term, 'armed career criminal,'

derives from the Federal Armed Career Criminal Act of 1984, 18

U.S.C. § 924(e) (2006), which imposes a mandatory minimum

sentence of fifteen years for those convicted of unlawfully

possessing a firearm in violation of 18 U.S.C. § 922(g) (2006)

who have three prior convictions of a 'violent felony' or a


     1 See, e.g., Commonwealth v. Johnson, 461 Mass. 44, 45
(2011); Commonwealth v. Furr, 454 Mass. 101, 104 (2009).
                                                                    2


'serious drug offense.'"   Commonwealth v. Anderson, 461 Mass.

616, 626 n.10, cert. denied, 568 U.S. 946 (2012).   But under

§ 10G, a single prior conviction of a "violent crime" or of a

"serious drug offense" requires the imposition of a mandatory

minimum sentence of no less than three years for anyone

convicted of a crime under G. L. c. 269, § 10 (a), (c), or

(h) -- provisions which include the offenses of carrying a

firearm without a license and the illegal transfer of a firearm

or ammunition.   See G. L. c. 269, § 10G (a).   Two such prior

convictions, as in this case, require the imposition of a

mandatory minimum sentence of no less than ten years.   See G. L.

c. 269, § 10G (b).   And, as illustrated by this case, the prior

"violent crime" or "violent crime[s]" may have been committed

when the defendant was a juvenile -- here, the defendant was

only fifteen years old when he committed his two predicate

offenses.

    The Legislature this year passed landmark criminal justice

reform legislation that has begun the process of revisiting the

wisdom and fairness of mandatory minimum sentences for certain

offenses.   See St. 2018, c. 69 (eliminating mandatory minimum

sentences for many low-level, nonviolent drug offenses).     As

that process continues, and as the Legislature examines the

wisdom and fairness of other mandatory minimum sentences

(including the length of those mandatory minimum sentences), it
                                                              3


is important to recognize that many, perhaps most, of the

defendants given mandatory minimum sentences as required by

§ 10G are not reasonably characterized as armed career

criminals, especially where their predicate crimes were

committed when they were juveniles.
