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SJC-11735

               TREVELL STARKS   vs.   COMMONWEALTH.



                         April 29, 2015.


Supreme Judicial Court, Superintendence of inferior courts.
     Practice, Criminal, Sentence, Appellate Division.


     Trevell Starks (petitioner) appeals from a judgment of a
single justice of this court denying relief on his petition
filed pursuant to G. L. c. 211, § 3. We affirm.

     The petition concerns the sentences imposed on the
petitioner on June 5, 2012, in the Superior Court following his
convictions of assault and battery on a police officer (two
counts), resisting arrest, disturbing the peace, and disorderly
conduct. He was sentenced to two consecutive terms of two and
one-half years each in a house of correction on the convictions
of assault and battery on a police officer. He received a
consecutive suspended sentence of two and one-half years in a
house of correction on the resisting arrest conviction, and
terms of probation on the remaining convictions. More than
twenty months later, on February 28, 2014, the petitioner filed
a motion with the Appellate Division of the Superior Court
requesting that the Appellate Division accept an appeal of his
house of correction sentences. See G. L. c. 278, §§ 28A-28C.
He claimed that failure to accept the appeal would violate his
rights under art. 1 of the Massachusetts Declaration of Rights
and the Fourteenth Amendment to the United States Constitution.
The Appellate Division denied the petitioner's motion. His
petition under G. L. c. 211, § 3, followed.1

    1
       Although the decisions of the Appellate Division with
regard to the severity of a sentence "shall be final," G. L.
                                                                   2



     General Laws c. 278, § 28A, limits the jurisdiction of the
Appellate Division to the "review of sentences to the state
prison imposed by final judgments in criminal cases . . . and
[to] the review of sentences to the reformatory for women for
terms of more than five years imposed by final judgments in such
criminal cases." The petitioner contends that G. L. c. 278,
§ 28A, violates equal protection guarantees because it permits
both men and women to appeal State prison sentences to the
Appellate Division and, on its face, permits women to appeal
sentences to a reformatory for women for terms exceeding five
years, but has no comparable provision for men sentenced to a
house of correction for more than five years. We rejected a
similar argument in Commonwealth v. Alfonso, 449 Mass. 738
(2007), and, for essentially the same reasons, reject the
petitioner's argument here.

     The historic distinction "between felony sentences to the
reformatory for women and felony sentences to the State prison
was based on circumstances and legislative schemes that are no
longer operative." Id. at 744.2 As we observed in Alfonso,
"[i]n 1993, the Legislature enacted comprehensive sentencing
reform that included measures to abolish gender distinctions in
sentencing." Id. at 739. Among other things, the legislation
"repealed various portions of the General Laws that authorized
gender distinctions in sentencing, as well as repealing
indeterminate sentences and reformatory sentences." Id. at 739
n.1.

     We must construe G. L. c. 278, § 28A, in light of the
sentencing reform amendments enacted in 1993, Alfonso, supra at
739-740, and conclude, as we did in Alfonso, that the
"reformatory for women" clause is a "historical artifact
designed to address the disparate sentencing structure that once
existed for men and women." Id. at 744 & n.13. Whether a
sentence is presently appealable to the Appellate Division


c. 278, § 28B, it is within this court's power of general
superintendence to consider whether a petitioner's sentence is
within the jurisdictional limits of the Appellate Division.
Commonwealth v. Alfonso, 449 Mass. 738, 741-742 (2007).
    2
       Moreover, the statute was never intended to "create
disparate appellate rights for men and women. Rather, it
provided women with comparable rights to appeal from definite
(but not indeterminate length) sentences under the sentencing
scheme that then existed." Alfonso, supra at 744 n.13.
                                                                   3


therefore turns on whether the sentence is a felony sentence to
the State prison -- more precisely, "whether the facts necessary
for conviction or the length of the sentence make it evident
that the sentence is a 'state prison' sentence," id. at 745-746
-- and not on any differing treatment between men and women or
on the phraseology of a particular sentencing order or mittimus.
Id.

     The petitioner attempts to capitalize on a statement we
made in Alfonso, that "the portion of G. L. c. 278, § 28A,
pertaining to appeals by women remains operative." Id. at 745.
He reads that statement out of context, however. The single
justice correctly understood that the statement was made in the
context of deciding that women, like men, may appeal to the
Appellate Division from a State prison sentence of any length.
We did not, and do not, construe the statute to give women
greater or lesser rights than men. Indeed, as we said, "[i]n
light of the equal protection jurisprudence mandated by art. 1
of the Massachusetts Declaration of Rights, . . . we cannot
admit an interpretation of G. L. c. 278, § 28A, that, as the
defendant would have it, authorizes men to appeal from a State
prison sentence of any length, including one of less than five
years, but denies the same right to women." Id. By the same
token, under the current sentencing scheme, neither men nor
women may appeal to the Appellate Division from a sentence that
is not evidently a State prison sentence. See id. The statute
therefore does not implicate equal protection concerns.

     For these reasons, we agree with the single justice that
the petitioner's sentences to the house of correction were not
within the jurisdiction of the Appellate Division.

                                   Judgment affirmed.


     Alexei Tymoczko for the defendant.
     Mary Lee, Assistant District Attorney, for the
Commonwealth.
