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SJC-12789

               COMMONWEALTH   vs.   DARRYL THOMAS.


                         March 23, 2020.


Firearms. Assault and Battery by Means of a Dangerous Weapon.
     Practice, Criminal, Sentence.


     This matter comes before the court on further appellate
review, limited to certain issues, detailed infra, concerning
the defendant's conviction of unlawful possession of a firearm
while in the commission of a felony under G. L. c. 265, § 18B.
For the reasons stated infra, we affirm that conviction but on
grounds different from those stated by the Appeals Court.

     A jury convicted the defendant of multiple offenses related
to his participation in a fight outside a bar in Worcester.1
After a subsequent bench trial on the sentencing enhancement
portions of his indictments, the defendant was sentenced as a
so-called "armed career criminal II"2 pursuant to G. L. c. 269,

    1  The jury convicted the defendant of two counts of assault
and battery by means of a dangerous weapon, see G. L. c. 265,
§ 15A (b), and one count each of unlawful possession of a
firearm, see G. L. c. 269, § 10 (a), unlawful possession of
ammunition, see G. L. c. 269, § 10 (h), unlawful possession of a
loaded firearm, see G. L. c. 269, § 10 (n), and unlawful
possession of a firearm while in the commission of a felony, see
G. L. c. 265, § 18B. The jury acquitted the defendant of armed
assault with intent to murder, see G. L. c. 265, § 18 (b).

    2  We have previously noted that the term "armed career
criminal," which derives from the Federal Armed Career Criminal
Act of 1984, codified as amended at 18 U.S.C. § 924(e) (2012),
                                                                   2


§ 10G (b), with respect to two firearm violations,3 and as a
habitual criminal pursuant to G. L. c. 279, § 25 (a), with
respect to two counts of assault and battery by means of a
dangerous weapon. He received a separate sentence in connection
with his conviction under § 18B.

     The defendant appealed from his convictions, and then filed
a motion for a new trial. After the motion for a new trial was
denied, the defendant's direct appeal was consolidated with the
appeal from the denial of that motion. A panel of the Appeals
Court reversed the judgments under G. L. c. 269, § 10G (b), and
remanded for sentencing pursuant to G. L. c. 269, § 10G (a) (a
so-called "armed career criminal I"), and it affirmed the
remaining judgments and the denial of the motion for a new
trial. See Commonwealth v. Thomas, 95 Mass. App. Ct. 1101
(2019).

     With respect to the conviction under § 18B, the panel
reviewed the defendant's unpreserved claim that the conviction
could not stand because the indictment was not linked to any of
the other charges, and all of the other charges were
disqualified from serving as the "root" felony4 for the § 18B
charge because of the prohibition on double jeopardy. While
agreeing with the defendant that his other charges could not
provide the root felony for the § 18B charge, the panel
concluded that there was no substantial risk of a miscarriage of
justice because, in its view, § 18B does not require the root
felony to be a charged offense, and in this case there was
evidence of an "uncharged strike" of the victim that could have
served as the root felony for the § 18B conviction.

     The defendant sought further appellate review from this
court on a number of issues. As noted supra, we granted his


is more appropriately used "only to characterize those with
three prior convictions of a violent crime or serious drug
offense who are sentenced under [G. L. c. 269,] § 10G (c)."
Commonwealth v. Anderson, 461 Mass. 616, 626 n.10 (2012).

    3  After the verdicts, the Commonwealth entered a nolle
prosequi on the charge under G. L. c. 269, § 10 (n), on the
ground that it was duplicative.

    4  By "root" felony, we refer to the offense referenced in
G. L. c. 265, § 18B, "in addition to" which the sentence for the
§ 18B violation is imposed.
                                                                   3


application limited to the issues concerning the conviction of
unlawful possession of a firearm while in the commission of a
felony under § 18B.5

     We begin our analysis with the language of G. L. c. 265,
§ 18B, which provides in relevant part:

     "Whoever, while in the commission of or the attempted
     commission of an offense which may be punished by
     imprisonment in the state prison, has in his possession or
     under his control a firearm, rifle or shotgun shall, in
     addition to the penalty for such offense, be punished by
     imprisonment in the state prison for not less than five
     years . . . ."

     The crux of the defendant's argument is that his § 18B
conviction must be vacated because the Commonwealth failed to
indict him for and convict him of an appropriate root felony.
The defendant's argument is twofold. First, he argues that his
convictions of assault and battery by means of a dangerous
weapon cannot serve as the root felony for his § 18B conviction
because such an outcome would be contrary to legislative intent,
and it would violate principles of double jeopardy. Second, the
defendant argues that, contrary to the Appeals Court's ruling,
the prosecution may not rely on uncharged conduct as the root
felony for a § 18B conviction. We disagree with the defendant
as to the first contention, and therefore, we do not reach the
second.

     Here, the defendant was convicted of two counts of assault
and battery by means of a dangerous weapon, either of which may
serve as the root felony for his § 18B conviction.6 The
defendant's arguments to the contrary are unpersuasive. Nothing
in § 18B prevents the Commonwealth from relying on a conviction
of assault and battery by means of a dangerous weapon as the
root felony for a § 18B charge. Although a prior version of the

     5 As to the other convictions and enhancements, the decision
of the Appeals Court stands.

     6 After instructing the jury on the elements of G. L.
c. 265, § 18B, the trial judge further instructed that "as a
matter of law, assault and battery by means of a dangerous
weapon and assault with intent to murder are offenses punishable
by imprisonment in the state prison." The jury were previously
instructed as to the elements of those two felonies.
                                                                   4


statute stated that "[t]his section shall not apply in the case
of any felony in which the offense consists in whole or in part
of using a dangerous weapon" (see Commonwealth v. Hawkins, 21
Mass. App. Ct. 766, 768 [1986]), the Legislature removed this
restriction when it amended the statute in 1998. See St. 1998,
c. 180, § 56. The restriction is thus no longer part of the
statute.7

     We also find no merit to the defendant's argument, based on
our opinion in Commonwealth v. Richardson, 469 Mass. 248 (2014),
that a sentence under § 18B may not be "stack[ed]" on top of a
sentence that has been subject to an enhancement under the
habitual criminal statute, G. L. c. 279, § 25 (a). Our opinion
in Richardson dealt with the interplay between G. L. c. 269,
§ 10 (d), and a provision of the so-called armed career criminal
statute, G. L. c. 269, § 10G. See id. at 251-253. Those two
statutes "do not create independent crimes, but enhance the
sentence for the underlying crime." Id. at 252, quoting
Commonwealth v. Johnson, 447 Mass. 1018, 1019 (2006). As to
those statutes, in the absence of a clear statement of
legislative intent as to how the two were meant to interact, we
declined to presume that the Legislature intended "to impose
multiple sentencing enhancements to a single underlying
offense." Richardson, supra at 254.

     Section 18B stands in marked contrast to the statutes at
issue in Richardson, as it creates an independent crime
punishable by a separate sentence that the Legislature has
required to be served "in addition to" the penalty for the
underlying offense. G. L. c. 265, § 18B. Cf. Bynum v.
Commonwealth, 429 Mass. 705, 709 (1999) (contrasting charge of
subsequent drug offense under G. L. c. 94C, § 32A [d], which
results in single, enhanced sentence for underlying crime, with

     7 By removing this restriction, the Legislature brought the
Massachusetts statute further into alignment with its Federal
counterpart, 18 U.S.C. § 924(c) (2012), which had been amended
in 1984 to specify that it would apply "regardless of whether
the underlying felony statute 'provides for an enhanced
punishment if committed by the use of a deadly or dangerous
weapon or device.'" United States v. Gonzales, 520 U.S. 1, 10
(1997), quoting the Comprehensive Crime Control Act of 1984,
Pub. L. No. 98-473, § 1005(a), 98 Stat. 2138-2139. See
Gonzales, supra (observing that Congress's 1984 enactment
"repudiated the result [the Court] reached in Busic v. United
States, 446 U.S. 398 [1980]").
                                                                   5


charge of committing drug violation in school zone under G. L.
c. 94C, § 32J, which results in "an additional consecutive
sentence" to be served from and after sentence for underlying
offense).8

     In addition, because the Legislature has clearly indicated
that a sentence for a conviction under § 18B is to be served "in
addition to" the sentence for the underlying felony, the
imposition of both sentences does not violate principles of
double jeopardy. See Commonwealth v. Alvarez, 413 Mass. 224,
232 (1992) (noting that "same evidence" rule expressed in Morey
v. Commonwealth, 108 Mass. 433, 434 [1871], is not
constitutionally based and that "[w]here the Legislature has
specifically authorized cumulative punishment under two
statutes, even if the two statutes proscribe the same conduct
under the Morey test, a court's job of statutory construction is
terminated, and the intent of the Legislature is to be
enforced"). Therefore, the defendant's conviction under § 18B
did not give rise to a substantial risk of a miscarriage of
justice.

     Because we conclude that the defendant's convictions of
assault and battery by means of a dangerous weapon may provide
the root felony for his conviction under G. L. c. 265, § 18B, we
need not, and do not, reach the further question whether the
Commonwealth may ever rely on uncharged conduct as the root
felony for a § 18B conviction, and we express no view on the
reasoning contained in the Appeals Court's memorandum and order
as to that issue. Instead, we leave the question open in
anticipation of a case that necessitates its resolution.




    8  Although § 18B requires a second, separate sentence that
is imposed "in addition to" the sentence for the root felony, it
need not be a consecutive sentence. The sentence for the § 18B
offense can be concurrent with the sentence for the root felony
and still be "in addition to" it. Contrast G. L. c. 94C, § 32J
(requiring separate consecutive sentence for certain controlled
substance offenses committed within school zones; "such sentence
shall begin from and after the expiration of the sentence for"
underlying offense). Nor does § 18B require a mandatory minimum
sentence of five years for a first offense. See Commonwealth v.
Hines, 449 Mass. 183, 191-192 (2007). A judge, for instance,
may sentence a defendant to not less than two years and not more
than five years; the maximum sentence, however, must be no less
than five years.
                                                                   6


     Accordingly, with respect to the defendant's conviction
under G. L. c. 265, § 18B, the judgment is affirmed.

                                   So ordered.


     Madeline G. Blanchette (Barbara Munro also present) for the
defendant.
     Nathaniel Beaudoin, Assistant District Attorney, for the
Commonwealth.
     Christopher DeMayo, for Shaun O. Harrison, amicus curiae,
submitted a brief.
