NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-11712

                 COMMONWEALTH   vs.   DAMIEN DIDAS.



       Middlesex.      December 4, 2014. - March 13, 2015.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Controlled Substances. Practice, Criminal, Sentence. Statute,
     Construction, Retroactive application, Amendment.



     Indictment found and returned in the Superior Court
Department on October 20, 2011.

     A pretrial motion to apply to the defendant's case
amendments made to G. L. c. 94C was heard by Garry V. Inge, J.

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


     Bethany Stevens, Assistant District Attorney, for the
Commonwealth.
     Arnold A. Blank, Jr., Committee for Public Counsel
Services, for the defendant.
     Barbara J. Dougan, for Families Against Mandatory Minimums,
amicus curiae, submitted a brief.


    BOTSFORD, J.    In this case we return to St. 2012, c. 192,

"An Act relative to sentencing and improving law enforcement

tools" (Crime Bill).   More specifically, we revisit the question
                                                                   2

whether certain provisions of the Crime Bill apply to drug

crimes with which the defendant was charged before the statute's

effective date, but for which the defendant was not convicted

until after the effective date.   See Commonwealth v. Galvin, 466

Mass. 286 (2013).   See also Commonwealth v. Bradley, 466 Mass.

551 (2013).

     The Crime Bill had an emergency preamble and was effective

on passage, which occurred on August 2, 2012.    Among other

things, it made a number of changes to provisions of the

Commonwealth's controlled substances law, G. L. c. 94C.1    The

Crime Bill also included a section specifying that certain

provisions of the legislation were to apply retroactively to

individuals who previously had been convicted of certain drug

crimes with mandatory minimum sentences and were still serving

those sentences.    See St. 2012, c. 192, § 48 (§ 48).   In Galvin,

466 Mass. at 286-287, 290-291, based on our review of the Crime

Bill's language and purpose, we interpreted § 48's retroactivity

provisions to mean that certain of its mandatory minimum

sentence reductions should be applied retroactively to a

defendant who had been charged with committing a drug offense


     1
       These changes to G. L. c. 94C include increases to the
weights required to establish certain drug offenses; reductions
to the mandatory minimum sentences associated with certain drug
crimes; and a reduction in the radius of school zones, which
influences whether those convicted of certain drug violations in
specified areas must be subject to mandatory sentence
enhancements. See, e.g., St. 2012, c. 192, §§ 21, 25, 30.
                                                                       3

before the Crime Bill's effective date, but who was not tried,

convicted, or sentenced until after that date.       Thereafter, in

Bradley, 466 Mass. at 561, we held that the school zone radius

reduction included in § 30 of the Crime Bill should be applied

retroactively to an individual who committed a drug offense

prior to the Crime Bill's effective date, where the adjudication

of the case did not occur until later.

     The defendant here has been indicted on a charge of

trafficking in cocaine in violation of G. L. c. 94C, § 32E (b)

(2), the second tier of this trafficking crime.2      The indictment

was pending on August 2, 2012, the Crime Bill's effective date,

and remains pending.    The Crime Bill amends § 32E (b) (2), along

with § 32E (b) (1), in two ways:   by striking out the previous

versions of these two clauses and replacing them with new

clauses that reconfigure or redefine the trafficking weights

defining each, and by reducing the mandatory minimum sentence

applicable to each.    See St. 2012, c. 192, § 21.    A judge of the

Superior Court has agreed with the defendant that, following

this court's decisions in Galvin and Bradley, both the


     2
       General Laws c. 94C, § 32E (b), prohibits trafficking in
"a controlled substance defined in clause (4) of paragraph (a)
. . . of Class B of [§ 31]" (emphasis added). Cocaine is one of
the controlled substances included in class B. See G. L.
c. 94C, § 31. For ease of reference, we refer to § 32E (b) in
this opinion as prohibiting trafficking in cocaine. Section 32E
(b) defines four tiers of trafficking in cocaine, differentiated
by the weight of the cocaine in question, and prescribes an
increased sentence for each successive tier.
                                                                      4

amendments to § 32E (b) (2) effected by § 21 of the Crime Bill

apply to this defendant.      We conclude that, in accordance with

Galvin, 466 Mass. at 290-291, § 21's reduction of the mandatory

minimum sentence required for a violation of § 32E (b) (2)

applies retroactively to the defendant, but that § 21's

redefinition of the minimum and maximum trafficking weights does

not.3

        Background.4   On May 3, 2011, Somerville police officers

observed the defendant engaging in what they believed to be

street level drug transactions.      The police later searched the

defendant and discovered him to be in possession of eight bags

of cocaine with a total weight of 28.14 grams.      On October 20,

2011, the defendant was indicted on a charge of violating G. L.

c. 94C, § 32E (b) (2), which at the time prohibited trafficking

in cocaine with a net weight of "[t]wenty-eight grams or more,

but less than one hundred grams," and imposed a mandatory

minimum prison sentence of five years and a maximum sentence of

not more than twenty years.      See G. L. c. 94C, § 32E (b) (2), as

amended through St. 2010, c. 256, § 70.      See also G. L. c. 94C,

§ 31.

        3
       We acknowledge the amicus brief submitted by Families
Against Mandatory Minimums in support of the defendant.
        4
       Because the defendant's case remains pending and untried,
we summarize allegations taken from the Commonwealth's statement
of the case that was filed in the Superior Court. The
summarized allegations are provided only to provide context;
they have not been proved.
                                                                   5

     On August 2, 2012, the Crime Bill was enacted and went into

effect.   As noted, § 21 amended § 32E (b) (1), the first tier

of trafficking in cocaine, by increasing the net weights

defining the tier to the range of from eighteen grams to thirty-

six grams -- the first tier previously had been defined as from

fourteen grams to twenty-eight grams -- and to establish a

mandatory minimum sentence of two years, rather than the

previous mandatory minimum of three years.   See G. L. c. 94C,

§ 32E (b) (1), as amended by St. 2012, c. 192, § 21.   Section

32E (b) (2), the second trafficking tier, was amended to

redefine the weight range for the tier as from thirty-six grams

to one hundred grams -- previously, the range had been from

twenty-eight to one hundred grams -- and to set the mandatory

minimum sentence as three and one-half years instead of the

previous five years.5   See G. L. c. 94C, § 32E (b) (2), as

amended by St. 2012, c. 192, § 21.   Thus, if the defendant were

to be charged and convicted under the version of § 32E (b) that

incorporates the Crime Bill amendments, the defendant could only

be found guilty under § 32E (b) (1), the lowest tier of

trafficking in cocaine, rather than § 32E (b) (2), the second

tier.


     5
       The Crime Bill also amended the third and fourth tiers of
trafficking in cocaine, G. L. c. 94C § 32E (b) (3) and (4), by
lowering the mandatory minimum sentence for each tier, but did
not make any change to the trafficking weights in either tier.
See St. 2012, c. 192, §§ 22, 23.
                                                                    6

     Prior to trial, on September 28, 2012, the defendant filed

a motion to apply all the Crime Bill's amendments to § 32E (b)

(1) and (2) to his case.   He later filed a supplemental motion

renewing his request in light of this court's decisions in

Galvin and Bradley.   On February 6, 2014, the judge allowed the

defendant's motion in a written memorandum of decision.    On

March 3, the Commonwealth filed a notice of appeal from the

judge's order pursuant to Mass. R. Crim. P. 15 (a) (1), as

appearing in 422 Mass. 1501 (1996), arguing that the order in

substance constituted an allowance of a motion to dismiss so

much of the indictment as charged trafficking in cocaine in

violation of § 32E (b) (2), leaving in place the lesser-included

offense of trafficking in cocaine in violation of § 32E (b) (1).6

We granted the Commonwealth's application for direct appellate

review.

     Discussion.   "As a general rule of statutory construction,

a newly enacted statute is presumptively prospective, and '[t]he

repeal of a statute shall not affect any punishment, penalty or

forfeiture incurred before the repeal takes effect.'"     Galvin,

466 Mass. at 290, quoting G. L. c. 4, § 6, Second.   See Bradley,

466 Mass. at 553; Commonwealth v. Dotson, 462 Mass. 96, 99-100

     6
       The defendant does not contest the Commonwealth's
characterization of the judge's order as a partial motion to
dismiss, or argue that the Commonwealth was not entitled to
appeal the order pursuant to Mass. R. Crim. P. 15 (a) (1). We
accept the Commonwealth's characterization, and we do not
discuss the issue further in this opinion.
                                                                    7

(2012).   "The consequence of this presumption is to 'preserve,

even after legislative change of a statute, the liability of an

offender to punishment for an earlier act or omission made

criminal by [a] statute repealed in whole or in part.'"

Bradley, supra, quoting Dotson, supra at 99-100.    The

presumption of prospective application governs "unless [its]

observance would involve a construction inconsistent with the

manifest intent of the law-making body or repugnant to the

context of the same statute."    Galvin, supra at 290, quoting

G. L. c. 4, § 6.   See Bradley, supra.

       The defendant in Galvin had been charged with committing a

drug crime -- distribution of cocaine as a second or subsequent

offense in violation of G. L. c. 94C, § 32A (d) -- before August

2, 2012, the effective date of the Crime Bill, but his case was

not adjudicated until after that date.    Galvin, 466 Mass. at

287.    Section 14 of the Crime Bill amended § 32A (d) to reduce

the section's mandatory minimum sentence of five years to three

and one-half years and, in sentencing the defendant, the judge

imposed the amended three and one-half year mandatory minimum.

Id. at 288.   The question raised on appeal was whether, given

the date of his offense and indictment, the defendant was

entitled to the benefit of this reduced mandatory minimum

sentence effected by § 14 of the Crime Bill.    Id. at 286-287.
                                                                    8

    In answering this question, we observed that "one of [the

Crime Bill's] primary purposes was to significantly reduce the

sentences to be served by individuals under the mandatory

minimum provisions of a wide range of drug-related offenses."

See Galvin, 466 Mass. at 291.   Given this statutory goal of

reducing sentences served for certain drug offenses (including

violations of § 32A [d]) going forward, and considering the fact

that in the retroactivity provisions of § 48 of the Crime Bill

the Legislature had expressly provided for application of the

legislation's reduced mandatory minimums to individuals

previously convicted of these crimes and currently serving

prison sentences, we concluded that to deny the defendant in

that case the benefit of the Crime Bill's reduced mandatory

minimum sentence for violating § 32A (d) would be "anomalous, if

not absurd," id. at 291, and accordingly "inconsistent with the

manifest intent of the [Legislature] as well as repugnant to the

context of the [Crime Bill]."   Id., quoting G. L. c. 4, § 6.

    In contrast to the change to § 32A (d) at issue in Galvin,

the defendant here seeks to benefit from changes to § 32E (b)

(2) that do not merely reduce the applicable mandatory minimum

sentence but also effectively redefine the elements of the

underlying crime for which he has been indicted.   This change is

unquestionably substantive in nature:   by increasing the minimum

drug weight required for a violation of § 32E (b) (2), the
                                                                   9

Legislature has altered what the Commonwealth must prove in

order to convict the defendant under this statute.   See Dotson,

462 Mass. at 100 (legislative amendment to G. L. c. 272, § 53,

differentiating between first and second offenses for disorderly

conduct has substantive impact on how Commonwealth must

prosecute offenses).   The result of applying the increased drug

weights to the defendant's case would be that the defendant can

be charged only with violating § 32E (b) (1), which, as the

Commonwealth correctly contends, is essentially a lesser

included offense of § 32E (b) (2).

    The defendant does not contest this characterization of the

redefined weights as a change to the elements of the crime of

which he is accused, or the observation that this is a more

substantive change than the one applied retroactively in Galvin.

Rather, he argues that regardless of the nature of the change,

retroactive application of the reconfigured drug weights to him

is consistent with the manifest intent of the Crime Bill and of

§ 48 in particular.    Section 48 provides:

    "Notwithstanding any general or special law to the
    contrary, any person incarcerated on the effective date of
    this act for an offense which, at the time such person was
    sentenced on such offense, requires serving a minimum term
    of incarceration before such person is eligible for
    probation, parole, work release or release shall be
    eligible for probation, parole, work release and deductions
    in sentence for good conduct under [§§] 12 to 29,
    inclusive" (emphasis added).
                                                                        10

St. 2012, c. 192, § 48.     The defendant argues that because the

reconfigured trafficking weights are included in § 21 of the

Crime Bill and § 21 itself is included within §§ 12 to 29, the

reconfigured trafficking weights therefore come within the

portion of the Crime Bill to which the retroactivity provision

in § 48 specifically applies.     He concludes from this that the

retroactivity provision in § 48 demonstrates a clear legislative

intent to apply all the provisions of § 21 retroactively to him,

not merely those provisions that affect his eligibility for a

reduced mandatory minimum sentence under § 32E (b) (2).

    The difficulty with the defendant's argument is that it

substantially ignores key language of § 48 the Crime Bill.         By

its express terms, § 48 focuses on offenders with mandatory

minimum terms of incarceration, and specifically on these

offenders' eligibility "for probation, parole, work release and

deductions in sentence for good conduct."     The reductions in the

mandatory minimum sentences included within §§ 12 to 29 of the

Crime Bill directly affect a drug offender's eligibility for

virtually all of these programs, because the programs otherwise

would not be available until the mandatory minimum portion of a

sentence has been served.     See G. L. c. 94C, § 32H.   For the

same reasons that we discussed in Galvin, see 466 Mass. at 291,

it would be "inconsistent with the manifest intent" and

"repugnant to the context" of the Crime Bill not to apply the
                                                                  11

new mandatory minimum sentence for a violation of § 32E (b) (2)

expressly set out in § 21 of the Crime Bill to the defendant in

this case.   If we did not apply this new mandatory minimum

sentence retroactively, a person convicted and sentenced before

the enactment of the Crime Bill would be eligible to be released

on parole upon completion of the new, shorter mandatory minimum

term, but a person who committed the crime on the same day but

was convicted and sentenced after its enactment would not be

eligible for release until completion of the old, longer

mandatory minimum.

     But the provisions of § 21 that amend § 32E (b) (1) and (2)

by reconfiguring the trafficking weights are a different matter.

These provisions in and of themselves have no direct

relationship to eligibility for probation, parole, work release,

or good conduct sentence deductions.   Rather, the net weights

determine only which tier of trafficking will apply; it is the

separate sentencing provisions within each trafficking tier that

then define the mandatory minimum sentence for that tier.7




     7
       The defendant's case illustrates the point. If the
reconfigured trafficking weights in § 21 of the Crime Bill were
applied retroactively to him, the direct effect would be that
the crime with which he is charged would change from trafficking
in violation of § 32E (b) (2) to trafficking in violation of
§ 32E (b) (1). As a consequence of that change -- not directly
-- the mandatory minimum sentence upon conviction would then
shift from three and one-half years (§ 32E [b] [2]) to two years
(§ 32E [b] [1]).
                                                                 12

     As Galvin, 466 Mass. at 290-291, suggests, the starting

point for any consideration of applying the Crime Bill

retroactively to the defendant is § 48.   Section 48 specifically

refers to mandatory minimum sentences (required "minimum term of

incarceration"), and provides that the Crime Bill's amended

minimums are to apply to those currently incarcerated.    It makes

no mention of the redefined trafficking weights that the Crime

Bill enacts, and at best, it would be administratively

challenging to apply those redefined weights to currently

incarcerated individuals.8   More importantly, it would appear to

be beyond the authority of the Department of Correction

(department) to treat a person convicted and sentenced for

violation of § 32E (b) (2) as effectively convicted and

sentenced for violation of § 32E (b) (1) -- the result the

defendant seeks in this case.9


     8
       Not everyone previously convicted of trafficking in
cocaine in violation of § 32E (b)(2) who was still serving a
sentence when the Crime Bill went into effect would be affected
by the bill's reconfiguration of the trafficking weight ranges
of § 32E (b)(1) and (2). Rather, whether such an inmate would
be affected would depend on the actual weight of the cocaine
involved in his or her underlying criminal case, and the
Department of Correction (department) would have to investigate
and determine the actual weight of the drugs at issue in each
such person's case. Such an investigation into the underlying
facts of each case is certainly outside the scope of the
department's responsibilities, if not of its authority, and is,
in many cases, difficult if not impossible to accomplish as a
practical matter.
     9
       We note that although the department began as early as
2012 to apply the Crime Bill's reduced mandatory minimum
                                                                  13

     If the redefined trafficking weights in § 21 of the Crime

Bill do not apply to those who are the direct and explicit

beneficiaries of the retroactivity provisions of § 48 --

individuals convicted of drug crimes with mandatory minimum

penalties who were previously sentenced and remained

incarcerated when the Crime Bill went into effect -- there is no

reason or justification for them to apply retroactively to the

defendant.   In light of this, and of the indirect manner in

which the trafficking weight amendments affect mandatory minimum

sentences, we conclude that it is not inconsistent with § 48 or

with the manifest intent of the Crime Bill generally to confine

the retroactive application of the Bill's provisions solely to

the revised and reduced mandatory minimum sentences contained

within §§ 12 to 29.10



sentences to those convicted before the Crime Bill's effective
date who are still incarcerated, the department did not
similarly apply the Crime Bill's amendments to the trafficking
weights for cocaine (see St. 2012, c. 192, § 21) and heroin (see
St. 2012, c. 192, § 25) to this group. See Memorandum from
Charles W. Anderson, Jr., Counsel to Department of Correction,
to Hon. Robert A. Mulligan, Chief Justice of Massachusetts Trial
Court, et al., at 2-3 (Sept. 18, 2012) (regarding department's
implementation of St. 2012, c. 192).
     10
       We disagree with the defendant's contention that the
reference in § 48 to §§ 12-29 "inclusive" of the Crime Bill as a
unit reflects a manifest intent by the Legislature to give every
provision of each of these sections retroactive effect, rather
than an intent to ensure only that the changes in mandatory
minimum sentences would be retroactive. As discussed, this more
limited scope of retroactivity is consistent with the actual
language of § 48.
                                                                   14

    In arguing against this result, the defendant asserts that

applying the amended drug trafficking weights in § 21 to him

furthers a primary purpose of the Crime Bill, namely, to

"significantly reduce the sentences to be served by individuals

under the mandatory minimum provisions of a wide range of drug-

related offenses."   Galvin, 466 Mass. at 291.   As previously

described, see note 7, supra, retroactive application to the

defendant of the Crime Bill's reconfigured drug weights for the

trafficking offenses defined in G. L. c. 94C, § 32E (b) (1) and

(2), would result in his receiving, if convicted, two reductions

in the mandatory minimum term he must serve when compared to the

sentence he would have received under the version of § 32E (b)

(2) in effect at the time he was indicted, thereby furthering

the Crime Bill's goal of reducing the mandatory minimum

sentences served for drug-related offenses.   This, he argues, is

additional evidence that retroactive application of the amended

drug weights to him is consistent with the manifest intent

behind the new statute.

    However, in light of the presumption of prospectivity in

G. L. c. 4, § 6, Second, the mere fact that retroactive

application of the amended trafficking weights to the defendant

might appear to advance an important purpose of the Crime Bill,

by itself, does not necessarily mean that failing to do so is

inconsistent with the statute's purpose.   If it were otherwise,
                                                                  15

every amendment or partial repeal and amendment of a criminal

statute would need to be given retroactive effect, in direct

conflict with the presumption of prospectivity.

     In sum, although retroactive application of the increased

drug weights to cases pending at the time that the Crime Bill

became effective might further advance an important goal of the

Crime Bill, in contrast to the Galvin and Bradley cases, here,

we conclude that prospective application is not contrary to its

"manifest intent" or "repugnant" to the statute's context.11

G. L. c. 4, § 6.

     Finally, the defendant invokes the "rule of lenity,"

arguing that in interpreting the Crime Bill, any ambiguity as to

whether the increased drug weights should apply retroactively to

him must be resolved in his favor.   See Commonwealth v.

Williamson, 462 Mass. 676, 679 (2012), quoting Commonwealth v.

Roucoulet, 413 Mass. 647, 652 (1992) ("when a criminal statute

can 'plausibly be found to be ambiguous,' the rule of lenity

     11
       Although in Commonwealth v. Bradley, 466 Mass. 551
(2013), and Watts v. Commonwealth, 468 Mass. 49 (2014), we
treated these two exceptions to the rule of prospective
application as distinct analyses, at other times, we have
determined that a single line of inquiry is sufficient to
address both exceptions. Compare, e.g., Bradley, supra at 553;
Watts, supra at 55, 60, with Commonwealth v. Galvin, 466 Mass.
286, 290-291 (2113); Commonwealth v. Dotson, 462 Mass. 96, 100-
101 (2012). Addressing both exceptions together is appropriate
here, where the defendant advances essentially the same argument
under the repugnancy exception as he does under the manifest
intent exception, namely, that applying the amended drug weights
retroactively results in lower mandatory minimum sentences for
more individuals, in keeping with the Crime Bill's purpose.
                                                                    16

applies, and we 'give the defendant the benefit of the

ambiguity'").   However, the rule of lenity does not come into

play when the question to be answered is whether a particular

criminal statute should be applied retroactively to a defendant

who is charged with committing an offense before that statute

went into effect.     This inquiry is governed instead by G. L.

c. 4, § 6, Second.    Even if this were not the case, "[t]he rule

of lenity does not require . . . that absent an ambiguity we

construe a penal statute most favorably to a defendant."

Commonwealth v. Carrion, 431 Mass. 44, 46 (2000).     See Watts v.

Commonwealth, 468 Mass. 49, 52 n.8 (2014).     Here, given the

presumption that new statutes will be applied prospectively, the

absence of any explicit indication that the Legislature intended

the increased drug weights to apply retroactively, and our

observation that applying the increased drug weights

retroactively would appear to create substantial practical

difficulties, we conclude that no ambiguity exists concerning

the retroactive application of the redefined drug trafficking

weights in § 21 of the Crime Bill.

    Conclusion.      The reduced mandatory minimum sentence under

G. L. c. 94C, § 32E (b) (2), as amended by St. 2012, c. 192,

§ 21, will apply to the defendant if he is convicted of that

offense.   The reconfigured drug trafficking weights provided in

G. L. c. 94C, § 32E (b) (1) and (2), as amended by St. 2012,
                                                                 17

c. 192, § 21, are not applicable to the defendant.   The order of

the Superior Court dated February 6, 2014, is vacated, and the

case is remanded to the Superior Court for further proceedings

consistent with this opinion.

                                   So ordered.
