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SJC-12638

              COMMONWEALTH   vs.   ALEXANDER RODRIGUEZ.



        Middlesex.       February 7, 2019. - May 28, 2019.

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


Firearms.   Practice, Criminal, Sentence.    Statute, Construction.



     Indictments found and returned in the Superior Court
Department on December 8, 2015.

     A motion to reconsider sentencing was heard by Thomas P.
Billings, J., and a question of law was reported by him to the
Appeals Court.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Steven J. Rappaport for the defendant.
     Howard P. Blatchford, Jr., Assistant District Attorney, for
the Commonwealth.


    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
                                                                       2


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.
                                                                      3


    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
                                                                   4


    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

(2008), and branded it as "confusing," after having "caused

courts some consternation."   Commonwealth v. Lindsey, 72 Mass.

App. Ct. 485, 493 (2008), cert. denied, 556 U.S. 1183 (2009).

We cannot disagree.

    Looking first at the ordinary meaning of the statutory

language, Foss v. Commonwealth, 437 Mass. 584, 586 (2002), as we

do to discern the Legislature's intent in enacting it,

Commonwealth v. Morgan, 476 Mass. 768, 777 (2017), citing

Commonwealth v. Peterson, 476 Mass. 163, 167 (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.
                                                                     5


     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 (2000); Commonwealth

v. Claudio, 418 Mass. 103, 109 (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 (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 (1996).     This is the locus of

the conundrum.   See Commonwealth v. Pon, 469 Mass. 296, 302

(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


     1 Insofar as it is extremely unlikely that the Legislature
meant an FID card to act as a "get out of jail free" card, we
take it that a sentencing judge, to the extent legally
permissible, would have discretion to sentence an FID-card-
holding felon to a sentence ranging presumably from probation to
no more than ten years in State prison.
                                                                   6


Mass. at 777, 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,


     2 Even if the third provision were not viewed as setting
forth a mandatory minimum sentence, it would not make sense to
say "such person" refers to FID card holders while the first
provision and its term "any person" refers to only non-FID-card
holders. That would mean that only FID card holders, and not
their non-FID-card-holding counterparts, would be subject to the
restrictions set out in the third provision, namely, no
eligibility for probation, parole, or furlough, or to receive
good conduct credits until after having served a term of at
least one year of incarceration in State prison. This would
contravene the legislative intent to treat FID card holders
favorably, as set forth in the second provision.
                                                                   7


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




     3 It is true, however, that in some cases, we have
determined that, absent the word "mandatory," statutory language
cannot impose a mandatory minimum sentence that is not subject
to judicial discretion. See Commonwealth v. Hines, 449 Mass.
183, 191 (2007) (rejecting contention that statute imposes
mandatory minimum prison sentence of five years in absence of
word "mandatory"); Commonwealth v. Lightfoot, 391 Mass. 718,
718-719, 721 (1984) (declining to interpret statutory language
that judge "shall" impose five-year sentence and $5,000 fine as
precluding judicial discretion in absence of word "mandatory");
note 4, infra. See also Boston v. Quincy Mkt. Cold Storage &
Warehouse Co., 312 Mass. 638, 646–647 (1942), quoting Swift v.
Registrars of Voters of Quincy, 281 Mass. 271, 276 (1932) ("The
word 'shall' as used in statutes, although in its common meaning
mandatory, is not of inflexible signification and not
infrequently is construed as permissive or directory in order to
effectuate a legislative purpose"). In none of these cases was
there a minimum and maximum sentencing range set forth, as here.
                                                                   8


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



     In any event, if the first provision does not create a
mandatory minimum sentence but the third provision does, the
non-FID-card holder would be subject to the one-year mandatory
minimum sentence of the third provision. The FID card holder
then would be subject to the sentencing range set forth in the
first provision, but without any of the restrictions set forth
in the third provision. See note 2, supra.

     4 In Lightfoot, 391 Mass. at 718-719, we considered a
statute that appeared to contain two different mandatory minimum
sentences. The first sentence of G. L. c. 272, § 7, which
prohibited deriving support from a prostitute, mandated that a
person convicted under it "shall be punished by imprisonment in
the [S]tate prison for a period of five years and by a fine of
[$5,000]." The second provision set out a significantly shorter
sentence that also appeared to be a mandatory minimum: "[t]he
sentence of imprisonment imposed under this section shall not be
reduced to less than two years, nor suspended, nor shall any
person convicted under this section be eligible for probation,
parole, or furlough or receive any deduction from his sentence
for good conduct or otherwise until he shall have served two
years of such sentence." Id.

     We concluded that the words "shall be punished by
imprisonment in the [S]tate prison for a period of five years
and by a fine of [$5,000]" in the first provision did not create
a mandatory minimum sentence that was not subject to a judge's
discretion. Lightfoot, 391 Mass. at 721. We noted in that
regard that the language did not include the word "mandatory."
Id. We determined further, however, that language in the second
provision ("shall not be reduced to less than two years"), in
conjunction with the requirement that the sentence not
be "suspended, nor shall any person convicted under this section
be eligible for probation, parole, or furlough or receive any
deduction from his sentence for good conduct or otherwise until
he shall have served two years of such sentence" did create a
                                                                    9


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 (2012), quoting DiFiore v. American Airlines, Inc., 454

Mass. 486, 491 (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 (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–




mandatory minimum term of two years. Id. In conformance with
the statutory mandate in G. L. c. 279, § 24, that a minimum and
a maximum sentence must be imposed for all convictions under
G. L. c. 272, § 7, we concluded that § 7 established a minimum
sentence of two years and a maximum sentence of five years. See
Lightfoot, supra.

     The language at issue in the third provision of G. L.
c. 269, § 10 (m), with its requirement that the sentence "shall
not be reduced" and its restrictions on parole, probation,
furloughs, and good conduct credits until such minimum term has
been served, is very similar to the second provision of G. L.
c. 272, § 7. Nonetheless, here, we are confronted with what
appear to be two different mandatory minimum sentences and one
maximum sentence.
                                                                   10


624 (2012) (rejecting interpretation that would have rendered

one word, "with," superfluous); Commonwealth v. Keefner, 461

Mass. 507, 511 (2012), quoting Bankers Life & Cas. Co. v.

Commissioner of Ins., 427 Mass. 136, 140 (1998) (interpreting

statute "so that effect is given to all its provisions, so that

no part will be inoperative or superfluous").

     The legislative history, while interesting, is only

minimally helpful in resolving the issue at hand.   General Laws

c. 269, § 10, was enacted in 1906, see St. 1906, c. 172, and was

amended in 1935 to reflect the Federal ban on fully automatic

weapons contained in the National Firearms Act of 1934, see St.

1935, c. 290.   Sixty years later, in 1994, the Federal Public

Safety and Recreational Firearms Use Protection Act, also known

as the Federal Assault Weapons Ban, was enacted.5   In it,

Congress defined the term "large capacity ammunition feeding

device," and made the transfer and possession of such devices

unlawful.6   See 18 U.S.C. § 921(a)(31) (repealed in 2004 pursuant

to sunset provision).   In 1998, Massachusetts adopted a version


     5 Under that act, however, semiautomatic weapons were
permissible, so the size of a weapon's magazine ultimately
determined the impact of discharging it. See A. Winkler,
Gunfight: The Battle Over the Right to Bear Arms in America 37
(2011).

     6 Feeding devices were much simpler to define, and easier to
recognize on visual inspection, than the myriad types of
firearms, legal and otherwise, that could be defined as
"semiautomatic."
                                                                   11


of the Federal weapons ban by adding G. L. c. 269, § 10 (m).

See St. 1998, c. 180, § 70.

     Contemporaneously with these Federal and State efforts to

keep firearms out of the hands of unsuitable individuals, in

1993, the Legislature enacted the "truth-in-sentencing" act.

See St. 1993, c. 432.   That comprehensive act was intended to

ensure that defendants actually served at least the minimum

terms of imprisonment to which they were sentenced.7   Presented

as a "get tough on crime" bill, the most significant and widely

discussed provision of the truth-in-sentencing act was to

eliminate so-called "Concord" sentences, which were intended to

allow rehabilitation for young, first-time offenders.8   See

Brown, 431 Mass. at 778-779; St. 1993, c. 432, § 20; State House




     7 Then Governor William Weld introduced the bill on June 3,
1993, following public outrage at the release from prison of a
former professor, who admitted to having bludgeoned a prostitute
to death, after having served only nine years of his twenty-year
sentence. See State House News Service, June 3, 1993; 1993
House Doc. 5682 (1994).

     8 Concord sentences allowed judges to sentence someone to a
lengthy term, for example of twenty years, and order that the
sentence be served at the Massachusetts Correctional Institution
at Concord, where the person could be released on parole after
approximately eighteen months. See State House News Service,
Apr. 6, 1994. Where a defendant sentenced to the same term
served the sentence at a different State prison, on the other
hand, the defendant would be eligible for parole after twelve
years. See Commonwealth v. Brown, 431 Mass. 772, 778-779
(2000); St. 1993, c. 432, § 20; State House News Service, June
3, 1993. Thus, by their terms, every Concord sentence
effectively established a form of split sentence.
                                                                  12


News Service, June 8, 1993.   The truth-in-sentencing act also

modified provisions that had made prison inmates eligible for

parole after having served two-thirds of their sentences, so

that they were not eligible for parole until having served the

entire minimum terms of their sentences; removed statutory good

time credits; and eliminated split prison sentences.     See

Commonwealth v. Azar, 444 Mass. 72, 78-79 (2005); Brown, supra

at 778 n.9; G. L. c. 127, § 133, as appearing in St. 1993,

c. 432, § 11.

    Given that G. L. c. 269, § 10 (m), was enacted only a few

years after the truth-in-sentencing act, the Legislature could

not have intended to establish a possible split sentence for

everyone convicted under G. L. c. 269, § 10 (m).   Otherwise put,

the Legislature would not have intended a sentence with one year

to serve (the minimum set forth in the third provision), and the

remainder suspended for one and one-half years (the remaining

term after subtracting one year from the minimum two and one-

half years in the first provision).   Indeed, the language in the

third provision, mandating that the sentence "imposed upon such

person shall not be reduced to less than one year, nor

suspended," clarifies that a split sentence was not intended.

    Although the statutory language remains somewhat opaque, we

think essentially what the Legislature intended to do was to

establish, for non-FID-card holders, a lower end of the
                                                                  13


sentencing range of from one to two and one-half years, with at

least one year to serve, in State prison.9   FID card holders were

intended to be sentenced quite differently, for reasons that are

not made clear, although inferably to recognize that those who

possess a valid FID card have at least attempted to be more

compliant with the gun laws.   The language of the second

provision suggests that such attempted compliance should count




     9 The Commonwealth argues, as an extension of Commonwealth
v. Semegen, 72 Mass. App. Ct. 478, 480-481 (2008), that the one-
year period in the third provision must apply to FID card
holders only, and sentences for non-FID-card holders may not be
less than the two and one-half years set out as the lowest of
the sentencing range in the first provision. But see note 3,
supra. The Commonwealth also contends in this regard that
sentencing someone to a shorter period of imprisonment for
possession of a high capacity feeding device (one year) than for
possession of an ordinary firearm (eighteen months) produces an
absurd result.

     We note first that, when G. L. c. 269, § 10 (m), was
enacted in 1998, the minimum sentence for possession of a
firearm, G. L. c. 269, § 10 (a), was one year. Eight years
later, G. L. c. 269, § 10 (a), was amended such that the
mandatory minimum sentence changed from one year to eighteen
months. St. 2006, c. 48, § 5. None of the other minimum
sentences for firearms offenses was increased. This amendment
to § 10 (a), however, cannot be used to inform as to the
Legislature's intent in enacting § 10 (m) eight years earlier.
Moreover, as possession of a feeding device alone cannot result
in a shooting, a mandatory minimum sentence for a feeding device
that would be almost twice the length of the minimum sentence
for possession of a firearm also could appear anomalous. In any
event, here, an individual unlawfully in possession of a firearm
capable of accepting a high capacity feeding device could be
charged separately for possession of that firearm, in addition
to charges for possession of the feeding device. We discern no
absurdity.
                                                                    14


at sentencing, even though not as a defense to the felony

charged.

     Moreover, to the extent that the statute as it affects non-

FID-card holders, like the defendant, is ambiguous as to the

minimum sentence it mandates, the rule of lenity leads to the

same conclusion:    the lower end of the sentencing range is from

one to two and one-half years, with at least one year to serve,

in State prison.    See Commonwealth v. Pagan, 445 Mass. 161, 167

(2005), quoting Commonwealth v. Kerr, 409 Mass. 284, 286 (1991)

("It is a well-established proposition that criminal statutes

are to be construed narrowly.    We have stated that '[w]e must

resolve in favor of criminal defendants any reasonable doubt as

to [a] statute's meaning'").10

     3.    Conclusion.   We answer the reported question, "Yes," a

defendant who has been convicted of possession of a large

capacity feeding device, in violation of G. L. c. 269, § 10 (m),

lawfully may be sentenced to State prison for not less than one

year nor more than two and one-half years.

     The matter is remanded to the Superior Court for further

proceedings consistent with this decision.




     10To the extent that our decision conflicts with
Commonwealth v. Lindsey, 72 Mass. App. Ct. 485, 493 (2008),
cert. denied, 556 U.S. 1183 (2009), and Semegen, 72 Mass. App.
Ct. at 480, those cases are overruled. Neither interpreted the
entirety of the statute as we do here.
              15


So ordered.
